Legal Practice in Eighteenth-Century Scotland
VOLUME 18
Studies in the History of Private Law Series Editors
C.H. (Remco) van Rhee (Maastricht University) Dirk Heirbaut (Ghent University) Matthew C. Mirow (Florida International University)
Editorial Board
Hamilton Bryson (University of Richmond) Thomas P. Gallanis (University of Iowa) James Gordley (Tulane University) Richard Helmholz (University of Chicago) Michael Hoeflich (University of Kansas) Neil Jones (University of Cambridge) Hector MacQueen (University of Edinburgh) Paul Oberhammer (University of Vienna) Marko Petrak (University of Zagreb) Jacques du Plessis (University of Stellenbosch) Mathias Reimann (University of Michigan) Jan M. Smits (University of Tilburg) Alain Wijffels (Université Catholique de Louvain, Leiden University, CNRS) Reinhard Zimmermann (Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg)
VOLUME 9
The titles published in this series are listed at brill.com/shlp
By
John Finlay
LEIDEN | BOSTON
Finlay, John, author. Legal practice in eighteenth-century Scotland / by John Finlay. pages cm. -- (Legal history library ; volume 18) (Studies in the history of private law ; volume 9) Includes bibliographical references and index. ISBN 978-90-04-29493-6 (hardback : alk. paper) -- ISBN 978-90-04-29494-3 (e-book) 1. Practice of law--Scotland--History--18th century. 2. Lawyers--Scotland--History--18th century. 3. Law--Scotland-- History--18th century. I. Title.
KDC232.F56 2015 340.023’411--dc23
2015020784
issn 1874-1793 isbn 978-90-04-29493-6 (hardback) isbn 978-90-04-29494-3 (e-book)
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This book is printed on acid-free paper.
Acknowledgements vii List of Illustrations viii Abbreviations ix Glossary xi
1 Introduction 1
2 Lawyers and Legal Practice 31
3 Income 70
4 Management 110
5 Ethics and Etiquette 153
6 Pro Bono 186
7 Societies 225
8 Solidarity 260
9 Burghs 287
10 Procurators Fiscal 319
11 Notaries 360
12 Conclusion 390
Appendix 413 Select Bibliography 417 Name Index 427 Subject Index 438
Acknowledgements
A number of debts have been incurred in the course of researching and writing this volume. My thanks are due to Mr Mungo Bovey, Keeper of the Advocates’ Library in Edinburgh, for permission to use and quote from the Session Papers in the care of the Faculty; to Mr James Hamilton, Principal Researcher at the ws Society, for access to material held in the Signet Library in Edinburgh; to Mr John McKenzie, chief executive of the Royal Faculty of Procurators in Glasgow, for facilitating access to the Faculty’s minute books; to the staff at the National Records of Scotland search room and the search rooms of the various archives across Scotland where research was carried out. Special thanks are due to Rosemary Paterson and Andrea Longson in the Advocates’ Library; Dr Kay Munro, Law Librarian at the University of Glasgow; Mrs Ellen Gallagher in the Law Workshop at the University of Glasgow; Mr Greig McDonell; Ms Charlotte Edgar; Ms Alessandra Pili; and Professoressa Ilenia Ruggiu of the University of Cagliari, where part of this book was written. Professors Olivia F. Robinson and Hector MacQueen both very kindly read individual chapters. Their suggestions were beneficial and gratefully received. Any deficiencies that remain are entirely my responsibility. I would also like to thank Ms Jennifer Obdam of Brill for her patience and assistance in dealing with queries during the publication process. The research for this work was completed with the aid of a grant from the Arts and Humanities Research Council (grant reference number AH/J00832X/1) which I acknowledge with gratitude. My thanks also go to the anonymous reviewers for Brill for their helpful comments. Quotations from archival sources appear courtesy of the following: Aberdeen City and Aberdeenshire Archives; the Keeper of the Advocates’ Library; the librar- ian of the Society of Advocates in Aberdeen; Dumfries and Galloway Libraries, Information and Archives; East Lothian Council Archives, John Gray Centre, Haddington; Glasgow City Archives; Edinburgh City Archives; Glasgow University Library, Special Collections Department; Highland Archive Centre, Inverness; the National Records of Scotland; Perth & Kinross Council Archive; the Royal Faculty of Procurators, Glasgow; Scottish Borders Archives (Heritage Hub, Hawick) and the ws Society. Material from manuscripts in their care is reproduced by kind permission of the National Library of Scotland. The letterbooks of George Craig are used and quoted by permission of Iain Smith & Partners ws in Galashiels. Finally, I would like to dedicate this book to the memory of my mother.
Glasgow May 2015.
1 Robert Craigie (1685–1760), of Glendoick, advocate, lord advocate, and Lord President of the Court of Session 43 2 William Grant (1701–1764), of Prestongrange, advocate, lord advocate and lord of session 72 3 Detail from John Kay, Original Portraits. ‘The artist under examination’ (1792). Kay stands before John Pringle, sheriff of Edinburgh (seated, right), with the sheriff clerk, Joseph Mack, seated between them. Kay’s furious protagonist, Hamilton Bell ws, is represented “black in the face” with rage, seated to the left 123 4 Copy complaint brought against James Petrie by the fiscal of Aberdeen in 1754, con- taining notes of the defence presented by William Grant 233 5 Opening page of an Information for the fiscal of Perth in 1757 against John Robertson for alleged infringement of the 1746 Act of Parliament for disarming the Highlands. The Information was signed by Andrew Pringle, advocate 341 6 Hon. Henry Erskine (1746–1817) of Almondell, advocate, dean of the Faculty of Advocates 394
Record Depositories aa Ayrshire Archives (Auchincruive) acaa Aberdeen City & Aberdeenshire Archives al Advocates’ Library alsp Advocates’ Library, Session Papers bl British Library dca Dundee City Archives dac Dumfries Archive Centre eca Edinburgh City Archives elca East Lothian Council Archives (Haddington) eul Edinburgh University Library gca Glasgow City Archives gua Glasgow University Archives gul Glasgow University Library hac Highland Archive Centre (Inverness) nrs National Records of Scotland nls National Library of Scotland pkca Perth and Kinross Council Archive rfpg Royal Faculty of Procurators in Glasgow saul St Andrews University Library sba Scottish Borders Archive (Hawick) sca Stirling Council Archives sl Signet Library slsp Signet Library, Session Papers
Reports and Other Sources arnp Admission Register of Notaries Public in Scotland, 1700–1799, edited by J. Finlay (2 vols, Edinburgh: Scottish Record Society, 2012). Br. Sup. Supplement to the Dictionary of Decisions of the Court of Session, ed. M.P. Brown (5 vols, Edinburgh: Tait, 1826). cj The Codex of Justinian C.S. & P. Reports of Cases decided in the House of Lords upon Appeal from Scotland from 1726 to 1821, edited by J. Craigie, J.S. Stewart and T.S. Paton (6 vols, Edinburgh: T&T Clark, 1849–1856).
Fac. Dec. Faculty of Advocates Report D. The Digest of Justinian Mor. The Decisions of the Court of Session from its First Institution to the Present Time, ed. W.M. Morison (22 vols, Edinburgh: Bell & Bradfute, 1801–1815). rps Records of the Parliament of Scotland, ed. K.M. Brown et al., (St Andrews, 2007–2014). tcm Town council minutes
Offices and Institutions
Adv. Advocate crb Convention of Royal Burghs hma His Majesty’s Advocate (i.e. the lord advocate) np Notary Public pcs Principal Clerk of Session scj Senator of the College of Justice (i.e. Lord of Council and Session) ws Writer to the signet
Advocate A term reserved for members of the Faculty of Advocates in Edinburgh who were entitled to practise in the supreme courts and in any inferior court. Advocates are sometimes referred to as ‘counsel.’ The Lord Advocate, a political appoin- tee of the government, was responsible for prosecutions in the public interest but also had a wider political role. In Aberdeen, writers and procurators used the title ‘advocate’ to indicate membership of the Society of Advocates in Aberdeen. Advocation A bill of advocation was a means of removing (or ‘advocat- ing’) an action from one court to another, normally an infe- rior court to the Court of Session. This was might be for iniquity (an allegedly partial or unsound judgment) or incompetence (the inferior judged lacked jurisdiction). Bailie court Also known as the burgh court, this court was presided over by bailies or magistrates who were generally laymen elected to the town council. Caption Also known as a process caption, but generally referred to simply as a caption, was a summary warrant sought by a clerk of court to recover a process improperly retained by the agent or party whose receipt stood for it in the court book. The agent might be incarcerated until the process is returned. Commissary The commissary court was the secular court which, after the Reformation, replaced the old courts of the bishops’ officials. Commissary courts in Edinburgh had advocates as judges; elsewhere, local writers were appointed. Court of Session Scotland’s central civil court in Edinburgh, staffed by lords of council and session who were almost always, in the eigh- teenth century, former members of the Faculty of Advocates. Diligence Diligence comprise all the processes and procedures permitted by law for the recovery of debts. In Scotland, this included ‘horn- ing’, that is, having a debtor ‘put to the horn’ or outlawed, for non-payment of debt. Less severe processes included the poind- ing and sale of the debtor’s goods in satisfaction of the debt. Faculty of Advocates The members of the Faculty of Advocates had a monopoly in rights of audience in the Supreme Courts, primarily the Court of Session and the High Court of Justiciary, and had the right to appear in any other court in Scotland and, from 1707, in the House of Lords.
Honoraries The fees paid to advocates, from the Latin honorarium (plur. honoraria), indicating a payment that was non-contractual and paid to a person exercising a liberal profession in return for his intellectual skills. Inferior courts Scotland’s inferior courts were numerous. The main ones were the sheriff court, the bailie (or burgh) court, regality courts (an extensive private jurisdiction held only by a few larger landown- ers or burghs of regality), the commissary court, local admiralty courts, justice of the peace courts and the baron court. Regality courts are ‘inferior’ in only a very limited sense in that they could not try the pleas of the crown (murder, robbery, rape and arson). Notary public A notary was formally admitted by the lords of session and had his name entered into a central admission register that was maintained from 1563. By statute, only a notary public could draft and authenticate certain types of legal document. Pleading Arguing in court. In the supreme courts (the High Court of Justiciary in criminal cases and the Court of Session in civil cases) this was the exclusive privilege of members of the Faulty of Advocates. There were oral debates before the judges, but pleadings were mostly taken up with written papers such as Memorials, Informations, and Answers. Procurator This is the name given to a lawyer acting in court. Even mem- bers of the Faculty of Advocates are called ‘procurators’ in the records of the High Court. Generally, a procurator was any law- yer admitted to practise in any court where he would be expected to plead. The procurator fiscal was the prosecutor in the inferior courts and also had some local administrative functions within the criminal justice system. Sheriff-depute The presiding judge in the sheriff court, although the depute could appoint one or more substitutes to preside in his stead. After 25 March 1748 all sheriffs-depute were members of the Faculty of Advocates, although they did not need to be in legal practice. Society of Solicitors This Edinburgh Society can be traced to 1707 and comprised those admitted to practise in the inferior courts (the commis- sary, burgh and sheriff courts). s.s.c. Solicitor in the Supreme Court. The S.S.C. Society contained members who, from 1754, were agents or solicitors in the Court of Session, Scotland’s central civil court in Edinburgh. It should not be confused with the Society of Solicitors at Law (or Society of Procurators) who worked in Edinburgh’s inferior courts.
Stewart A royal officer in the stewart court, with equivalent jurisdiction in a stewartry to that of a sheriff in a sheriffdom. Suspension A bill of suspension had the effect of sisting procedure in an inferior court while the Court of Session reviewed an interlocutor of the infe- rior judge. It was thus a means of appeal from the local civil court to the central one. ws Society Society of Writers to the Signet. These writers were members of the College of Justice and had particular privileges in respect of Court of Session procedure and a monopoly on writing some of the papers relat- ing to it.
A useful source for Scottish legal and other terminology is the online Dictionary of the Scots Language (http://www.dsl.ac.uk) which includes the Dictionary of the Older Scottish Tongue. A good contemporary, source is Robert Bell and John Skene, A Dictionary of the Law of Scotland Intended for the Use of the Public at Large, as Well as of the Profession (Edinburgh: Printed for John Anderson and Sold by Messrs Longman, Hurst, Rees, and Orme, London, 1807). A new reprint of the 7th edition of this work has recently appeared: George Watson, ed. Bell’s Dictionary and Digest of the Law of Scotland. 7th ed. (Edinburgh: Edinburgh Legal Education Trust, 2012).
chapter 1 Introduction
There are potentially many different ways of subdividing the eighteenth-century legal profession. Distinctions might be drawn based on qualification, function, social status, or by reference to the status of the courts in which lawyers most commonly carried out their business. Contemporaries might have said that there were three distinctions that particularly mattered: that between central court practitioners and those who worked provincially; that between those who argued in court and those who did not; and that between those who were qualified as notaries (a status required to carry out certain functions under statute) and those who were not. These categories were not necessarily mutually exclusive: many who argued in the courts, including even a few advocates in the Court of Session, were also qualified notaries. In some cases, however, it was regarded as being incompat- ible to attempt to hold one status while having another. In the central court, an advocate could not simultaneously hold office as a writer to the signet. In the local courts, the rule came to be established that lawyers could not act for cli- ents if they also held office as town clerk or that a sheriff substitute could not act as an agent in the same court. The first distinction comprises another, separating those who enjoyed the exclusive privilege of transacting business before the Court of Session in Edinburgh from those who did not. The former group comprised members of the Faculty of Advocates, writers to the signet and, from 1754, those admitted as agents by the lords of session (a group which eventually emerged as the s.s.c. Society).1 These groups formed the elite of the profession, involved in matters that were national in scope, because their court heard cases from across Scotland and drew men from every quarter to develop their careers there. Other lawyers essentially had a local practice (even when that local practice was based in the inferior courts of Edinburgh). One tangible differ- ence that this entailed was that local writers did, albeit rarely, serve as jurors (as ‘assysors’ or assizers) in criminal cases (at least prior to 1825); advocates in the College of Justice were exempt from this duty.2
1 The Society of Solicitors in the Supreme Courts of Scotland. For which see, J.B. Barclay, The s.s.c. Story: two hundred years of service in the College of Justice (Edinburgh: Edina Press, 1984). 2 E.g. nrs, Sheriff court of Hamilton, criminal jury trials, SC37/50/1, 21 Oct. 1745; John M. Pinkerton, ed. Minute Book of the Faculty of Advocates, 1713–1750 (Edinburgh: Stair Society,
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The second important distinction was functional: it differentiates those who were admitted to plead in a particular court from those who were not. This cut across the divide between practitioners in the central court (where only members of the Faculty of Advocates could plead) and the local courts. Proof of ability was usually necessary before a judge would admit a man as a pleader in his court and the formal admission was normally recorded in the court book (continental treatise writers refer to “matriculation in the album of the court”, although such language was generally not used in Scotland). The alternative to pleading was to be engaged in a purely chamber practice, giving legal advice, drafting deeds, buying and selling property, uplifting rents and managing money on behalf of clients. Pleaders were generally called ‘procurators.’ Even members of the Faculty of Advocates, when appearing in the supreme courts (the Court of Session, the Teind Court and, in criminal cases, the High Court of Justiciary), were often described in the court record as ‘procurators’, the same title as that enjoyed by practitioners even in the smallest burgh court. Outside the courts, the term ‘writer’ was gener- ally used. It had many popular synonyms (doer, law agent, man of business, solici- tor) but all of them referred simply to anyone who held himself out as sufficiently expert to manage the legal affairs of others. The title implied no authorisation by any public authority. It meant no more than that enough members of the public were willing to repose confidence in an a writer’s skill and judgement that he was able to make a living from undertaking some aspects of legal business.3 While the pleader/non-pleader distinction was absolute in the central court (writers to the signet or agents there had no right of audience before the judges), this was not necessarily the case in local courts where standards were more relaxed. Local writers might often be found acting as procurators in the court; the generic term ‘writer’ was generally applied to them in non-curial contexts. In this regard, the burgh of Aberdeen is unusual because it had a local Society of Advocates. These men were ‘procurators’ in the local Aberdeenshire courts; if they are found described as ‘writer’ then, strictly speaking, that did them a disservice. Writers in Aberdeen did exist, but they were generally cham- ber practitioners who were not members of the Society of Advocates. Although its membership was large, the Society of Advocates in Aberdeen remained rea- sonably exclusive, taking care to examine new members who prided themselves
1980), 159; Angus Stewart, ed. The Minute Book of the Faculty of Advocates, 1751–1783, (Edinburgh, Stair Society, 1999), 185–7; Ian D. Willock, The Origins and Development of the Jury (Edinburgh: Stair Society, 1966), 168–9. 3 nrs, Court of Session, Bill Chamber, CS271/71484, Memorial for the Society of Procurators before the Sheriff Court of Ayrshire against Alexander Jamie, and Others, 25 June 1813, p. 6.
4 Law Agents (Scotland) Act Amendment Act 1896, s. 2. 5 By law writers, agents or solicitors in the Court of Session, High Court of Justiciary and Court of Exchequer were required to take the oaths required of persons in public offices before practising: 20 Geo. ii. c. 43, The Abolition of Heritable Jurisdictions (Scotland) Act 1747, s. 44. 6 See generally John Finlay, “Legal education, 1650–1850” in Robert Anderson et al., ed. The Edinburgh History of Education in Scotland (Edinburgh: Edinburgh University Press, 2015), 114–132.
It was a commonplace in early modern Europe that those admitted to argue before a nation’s supreme tribunals should be of good academic and social standing.7 In particular, the holding of certain offices was regarded as incompat- ible with the status of advocate or barrister. While it was clear that the office of ws or procurator was incompatible with that of advocate in Scotland, it was not until 1880 that the Faculty of Advocates actually defined rules as to what should happen if one of its members resigned to become a solicitor (a term by then much more popular than it was a century before) or, indeed, rose from the lower branch of the profession to enter the bar of the Court of Session.8 Only one example, that of Robert Forsyth, was traced in the Faculty’s minutes of a man who had attempted to enter the bar having previously entered an incompatible profession.9 In fact, other evidence suggests that this transition from the lower to the upper branch of the profession was not unique during the eighteenth cen- tury. The best examples are David Armstrong, Thomas Walker Baird and John Pattison.10 All had trained or practised as writers in Edinburgh, with Armstrong active as an agent before the Court of Session. Another advocate, Robert Mackintosh, was reputed to have trained as a country lawyer although whether he practised as such is not known. These men, by training and experience, are likely to have been of the stamp of Alexander Ferguson of Isle. Trained in Scots law at the end of the seventeenth century, at a time when writers and advocates’ clerks still regularly proceeded to membership of the Faculty, Ferguson was described by Lord Grange as “a good douce sort of a man but no Civilian tho he understands Scots business well enough.”11 The latter attribute, his knowledge of Scots law and procedure, was ascribed to Ferguson’s training as a writer.
7 See, e.g. Michael P. Fitzsimmons, The Parisian Order of Barristers and the French Revolution (Cambridge, Mass: Harvard University Press, 1987), 12; Lenard R. Berlanstein, The Barristers of Toulouse in the Eighteenth Century (1740–1793) (Baltimore: John Hopkins University Press, 1975), 33; John Finlay, “Lawyers and the Early Modern State: regulation, exclusion, and numerus clausus” 44 (2009) Canadian Journal of History: 385, 394. 8 Advocates Library [al], Faculty of Advocates’ records, FR9, fols. 406–7. 9 John W. Cairns, “The Face that did not fit—race, appearance, and exclusion from the bar in Eighteenth-century Scotland,” Fundamina 9 (2003): 11; Ibid., “Alfenus Varus and the Faculty of Advocates: Roman visions and the manners that were fit for admission to the Bar in the eighteenth century,” Ius Commune 28 (2001): 203; John Finlay, The Community of the College of Justice: Edinburgh and the Court of Session 1687–1808 (Edinburgh: Edinburgh University Press, 2012), 128, 136. 10 See John Finlay, “Corruption, regionalism and legal practice in Eighteenth-century Scotland: The rise and fall of David Armstrong, advocate,” Transactions of the Dumfriesshire and Galloway Natural History and Antiquarian Society 86 (2012): 145–174. 11 National Records of Scotland [nrs], Mar and Kellie papers, GD124/15/981.
The focus of this book is legal practice and, necessarily, this involves looking both to the centre and to the periphery. The Scots were a litigious people and many of them would not rest satisfied with a case decided in the inferior local courts. It was common to remove actions from the those courts in order to have them heard in the Court of Session, or to suspend an inferior judge’s inter- locutor in order to have its competence tested in Edinburgh before the lords of session. As a result, practitioners in Edinburgh and in the country (‘country practitioners’ as they were often called) had regular dialogue and formed pro- fessional relationships which might be sustained over years. Partly this was because of the relaxed pace of Scots procedure, which entitled parties to make reclaiming petitions even after the lords of session had pronounced judgment, but also because some clients found themselves litigating quite often. Other legal questions, involving substantive issues of the law of succession, marriage, conveyancing, boundary disputes or disagreements over rent, might regularly arise and, without ever leading to court action, require expert guidance from an advocate or ws. In 1792 the practitioners of the inferior courts in the capital, who had formed themselves into the Society of Solicitors before the Commissary, Sheriff and City Courts of Edinburgh, complained that their income was small relative to many country practitioners.12 Unlike writers to the signet and agents in the Court of Session, who engaged in valuable cases on behalf of clients able to pay generous fees, these men worked in “the inferior Courts where the Fees are but trifling and these often ill paid owing to the poverty of the Litigants.” To make matters worse, they had little of the lucrative drafting of deeds on stamped paper, and work as factors, almost all of which was preserved to Court of Session practitioners. In other parts of the country, local practitioners often drafted such deeds and, because they resided so far from Edinburgh, they had opportunities to work as factors or sub-factors. As Edinburgh solicitors noted,
many instances can be condescended on where Noblemen and Gentle men having estates in different Counties and one principal Factor as Practitioner in the Court of Session that Factor appoints subfactors in the different counties so as business may be attended to on the spot which is an additional chance in favour of these [country] Practitioners.
Function was related to status. Advocates and procurators were both regarded as holding a form of public office. The noble office of advocate (advocationis officium) was “praiseworthy, ancient and necessary” (laudabile, antiquum
12 nrs, Papers of the Society of Writers to the Signet, GD495/48/1/10.
& necessarium), according to Alexander Abercrombie when, in 1694, he was on the verge of gaining it for himself.13 The office of procurator (officium procura- toris) was a lesser one, sometimes described in Latin as being of little worth (vile), rather than noble.14 Writers, it was at one time argued, were more akin to tradesmen because they took on apprentices; however, the better view gave them augmented status as the holders of “a liberall imployment.”15 That status mattered is clear from the fact that holding one office might be regarded as inconsistent with holding another or, for example, accepting an office in the revenue which, in the case of the writer John Buchanan in 1769, was regarded as incompatible with his being commissary clerk of Kirkcudbright.16 As we have already seen, the purity of the profession demanded, in some circumstances, that certain individuals be excluded from it due to their back- ground, lest the mysteries of the law be perceived as tainted by the dishonour or apparent servility of those admitted to them. This concept was not unique to admission as an advocate. Service as a clerk to an Edinburgh craft was said in 1742 to be “vile & contemptible” and “below the character of a writer to the Signet.”17 The ws Society prohibited its members in 1753 from taking on as an apprentice anyone who had previously worked as an extractor or agent in the Court of Session unless special application was made to the Keeper and Commissioners of the Signet.18 If such permission was granted, the apprentice could not, during the course of his indenture, act as an agent or extractor, or negotiate any business for fee or reward, independent of his apprentice master. Should he do so, the Society would not admit him as a member. This was not because, or simply because, Court of Session agents were inferior in status: the ws Society enjoyed certain privileges that its members wanted to protect and drawing a clear boundary between their office and that of agent was intended to prevent encroachment on these privileges by non-members. The ‘unlicensed’ lawyer, the non-member of a recognised legal society who managed to take clients away from members and conduct business before the
13 Glasgow University Library, Special Collections [gul, Spec. Coll.], Alexander Aber crombie, Disputatio Juridica, De Mandato (Edinburgh: Heirs of Andrew Anderson, 1694). 14 Johannes Kahl, Lexicon Iuridicum iuris Caesarei simul, et canonici: feudalis item civilis, criminalis: theoretici, ac practici (Hanover: Daniel and David Aubry and Clemens Scheich, 1619), s.v. procurator. 15 John S. Muirhead, The Old Minute Book of the Faculty of Procurators in Glasgow, 1668–1758 (Glasgow, 1948), 54. 16 nrs, Commissary of Kirkcudbright, diet books, CC13/1/1, fol. 29. 17 National Library of Scotland [nls], Yester papers, ms 7048, fol. 116r. See Finlay, Community of the College of Justice, 162–3. 18 Signet Library [sl], ws Society Sederunt book 1750–1784, fol. 37.
Lawyers and Clients
The relationship between lawyers and clients is discussed in Chapter Two. The general role of lawyers in the system of justice in eighteenth-century Scotland, however, can be best considered briefly from the point of view of their clients in the context of a legal process begun in an inferior court being translated to the Court of Session and beyond. As his case followed its course, a client might find himself involved in up to four relationships. First, he would employ a local writer. If the writer himself were not a procu- rator in the inferior court, a procurator would separately be employed to deal with the case in that court. For the client, the relationship with this writer, or country practitioner, was the key one. If his estate were large enough, it is a role that might be taken on by his factor, because factors were often local lawyers. Normally it was this local writer or factor, rather than the client himself, who would employ an Edinburgh agent, should a case proceed beyond the local court. Due to a rule concerning what is called ‘double agency’, this was an important consideration. A local writer employing an Edinburgh agent was held responsible for the latter’s fees.20 He had a right of relief against the client, but was obliged to meet the Edinburgh agent’s fees—this was true even if some of the work was done unbeknown to him and directly at the behest of the client. If the client were sufficiently important, of course, perhaps a mem- ber of the nobility, then not only might he communicate personally with the Edinburgh agent, but he might also initiate informal contact with the lord ordinary who was dealing with his case. The chances are that a high status
19 On maintenance, see John H. Baker, The Legal Profession and the Common Law (London: Hambledon Press, 1986), 112–114, 135–49. In the us, Disciplinary Rule 3–101, in the Model Code of professional Responsibility, specifies that “A lawyer shall not aid a non-lawyer in the unauthorized practice of law.” This is traced back to canon 47 of the aba Canons of Professional Ethics (1908). 20 Greig v Stewart (1811) 10 S. 293.
client would have had prior professional or social contact with at least one Court of Session judge, given that the latter, as landowners, held their own estates around the country. The role of the Edinburgh agent was a general one: to oversee and advise on the procedural aspects of the action, find, copy and store written evidence, oversee searches of the legal records, handle money and provide a channel of communication. It was also the agent’s role to look out for any bills of advoca- tion or suspension against his client, or attempts to execute diligence (enforce- ment of judgments) against him. The surviving accounts of these agents demonstrate a wide variety of such legal tasks. They were normally, but not always, members of the College of Justice and, as such, were either writers to the signet or, from 1754, formally admitted by the lords of session as agents or solicitors before their court.21 A successful Edinburgh agent would carry on work on behalf of clients from across the country. The writer James Chrystal, for example, was owed money when he died by writers in a range of places including Greenock, Glasgow, Balfron, Alloa, Montrose, Aberdeen, Hamilton, Linlithgow and Inveraray.22 Thirdly, the client would employ one or more advocates whose task was to advise on points of law, or procedure, and present the case, in writing and orally, before the lords of session. The advocate would also, if necessary, revise procedural documents drafted by the agent and provide opinions, not only on the legal points in dispute but also on questions of strategy. An example can be seen in the 1723 case brought by the duke of Atholl against Alexander Robertson of Faskally.23 Robertson’s counsel (that is, his advocate) strongly advised that someone be commissioned to take evidence in the case locally. His calculation was that elderly witnesses, brought to Edinburgh to give evi- dence before the judges, particularly if they spoke with strong local dialects, might not be readily understood and it made better sense to employ a local commissioner on oaths to question them. Finally, in the event of an appeal to the House of Lords, there would be a further relationship with a London-based solicitor (a number of Scots had moved south to take on this role) and legal counsel. Counsel retained to act in a Lords’ appeal were not necessarily based in Westminster. Scots advocates periodically journeyed south to plead in such cases and normally acted in con- junction with barristers (some of whom, of Scottish extraction, specialized in
21 See Finlay, Community of the College of Justice, 160. 22 nrs, Sheriff court of Stirling, record of inventories, SC67/36/10, fols. 310–316. 23 nls, Mackenzie of Delvine papers, ms 1209, fols. 52v, 54v, 55r, 57r, 59r, 73r, 74r, 76v, 197r, 199r–v, 226r.
Authority
Important to the relationship between lawyers and their clients were the legal principles governing it. According to the sixteenth-century French jurist, Barnabé Brisson (1531–91), the primary definition of a procurator in Roman law was one who carried on another’s business by his mandate.28 While there were various types of procurator, for negotiating different kinds of business, the ‘litis procuratores’, or procurators of legal actions, were those who instituted and managed litigation. As a legal system heavily indebted to civilian principles, and strongly influ- enced by French and Dutch literature, the concept of mandate was very impor- tant in Scotland, yet it was affected by status. It was never necessary for members of the Faculty of Advocates, though referred to as ‘procurators’ in
24 See John Finlay, “Scots lawyers and House of Lords appeals in Eighteenth-century Britain,” Journal of Legal History 32 (2011): 249–77. 25 al, Minute books of the Faculty of Advocates, FR10, fol. 727. 26 The only detailed study of litigation in the College is that of W. Coutts, The Business of the College of Justice in 1600 (Edinburgh: Stair Society, 2003); cf. David Lemmings, The Professors of the Law (Oxford: Oxford University Press, 2000), 80–2. 27 On the Session Papers, see A. Stewart, “The Session Papers in the Advocates Library” in Miscellany iv, ed. Hector L. MacQueen (Edinburgh: Stair Society, 2002), 199–224. 28 Barnabé Brisson, De verborum significatione (Lyon: 1559), 468 (sub nom. procurator).
An advocate is admitted under the immediate inspection of the supreme Court; and it is the peculiar privilege of his office to appear before every judicatory of the kingdom, and his gown alone is sufficient mandate for that purpose. This is not the case with the procurators admitted by the inferior courts. They are intitled to appear before those courts alone by whom they have been vested with the character.29
That is not to say that in some circumstances a written commission might not be useful, particularly where the client resided abroad. An example is the commission sent from London in 1742 by Mary Graham (daughter of an Edinburgh jeweller who had moved south) in favour of the advocates James Graham of Airth and Archibald Murray.30 Nor was it the case that the lack of requirement for an advocate to produce a mandate never led to confu- sion. In one case, David Scrymgeour appeared, ostensibly for a group of creditors, only for it later to be denied by one of them that he had their authority.31 A writer, procurator or law agent, on the other hand, had to provide a man- date. Without it, he had no authority and if he failed to show his mandate, according to the prevailing opinion of European jurists, he might incur per- sonal liability to his supposed client.32 A mandate might fall into one of two types: a general mandate, which authorised the procurator to act as the client’s ordinary agent in his legal affairs, and a special mandate, authorising him to act in defined circumstances (perhaps, for example, in all the actions concern- ing a particular estate, or to defend all the actions brought by a particular
29 Advocates Library, Session Papers [alsp], Miscellaneous collection, ser. vii, vol. (1785), Information for the Reverend Mr James Wemyss and others, Defenders; against John Rutherford writer in Kirkcaldy, Pursuer, 22 Apr. 1785, p. 9. 30 nrs, Cunninghame Graham of Ardoch papers, GD22/1/180. 31 alsp, Arniston collection, vol. 50, no. 15, The Petition of James Paton, 20 Feb. 1760, p. 5. It was suggested (at pp. 5–6) that it would be “extremely hard, if Parties, who cannot call in question their [i.e. advocates’] Authority for appearing, might be afterwards told, that they had no Authority to appear.” 32 E.g. B. Bertazzoli, Consiliorum sue responsorum civilium, liber primus (Venice: Giovanni Battista Somasco, 1584), p. 233 (cons. 70.14). See John Finlay, “The Lower branch of the legal profession in Early Modern Scotland,” Edinburgh Law Review 11 (2007): 51.
pursuer, or authorising a matter to be put to the oath of the other party).33 As the law of mandate was recognised in all civilian systems, the definition offered of the procurator ‘generalis’ and ‘specialis’ by Joseph Hume in 1705, as part of his theses for admission to the Faculty of Advocates, was entirely conventional.34 If either such mandate existed, then the agent might bring an action against his client on the mandate (actio mandati directa, or simply ex mandato as it appears in the pleadings) and, if the mandate were not properly carried out, the client might have a counter-action (actio mandati contraria). There were three ways of proving the existence of such a mandate and this depended on whether it was written or oral. The first situation was the most common: where the mandate was in writing, then the writing was proof both of its existence and its extent. In the inferior courts, so far as procurators are concerned, a written mandate might be insisted upon and, strictly speaking, the judge was supposed to demand it. In the bailie court of Dunbar, for exam- ple, even a figure as well known locally as Archibald Higgins, the procurator fiscal, was required to produce a mandate when presenting a case on behalf of a private prosecutor.35 In Edinburgh in 1792 the lord provost personally signed a mandate by which the procurator fiscal was to defend a case in the local sheriff court.36 The new sheriff depute of Paisley, Charles McDowall, noting the inconvenience of procurators appearing without any mandate, made it a rule of court in 1748 that “every procurator for the Defender shall give in his Mandate along with his written defences” or face a fine.37 Practice was not always strict however. Established lawyers, “vested with the character” of procurator, were often taken at their word and not routinely required to produce a written mandate. In the regulations introduced into the sheriff court of Aberdeen in 1777, a procurator of court who was not “judicially authorized” required, as an alternative, to have a written mandate.38 Any defen ding procurator who was neither authorized, nor produced a mandate, would be held personally liable for the expense of litigation was if the defender lost.
33 A special written mandate was necessary to authorize a procurator to put a matter to the oath of verity of the opposing party when the case was valued above £40 Scots in the regu- lations of Aberdeen sheriff court in 1777: nrs, Sheriff court of Aberdeen, diet books, SC1/2/59, fol. 316. 34 Josephus Hume, Disputatio Juridica, De Procuratoribus et Defensoribus (Edinburgh: Heirs of Andrew Anderson, 1705), thesis iii. 35 E.g. nrs, B18/31/38/4, 19 Feb. 1735. On the role of the procurator fiscal, see Chapter Ten. 36 Edinburgh City Archives [eca], Edinburgh town council minutes [tcm], SL1/1/120, fols 35–6. 37 nrs, Sheriff court of Paisley minute book, SC58/1/13, 5 Jul. 1748. 38 nrs, Sheriff cout of Aberdeen diet book, SC1/2/59, fol. 310.
Where a mandate was given in writing, we should not think of it in terms of a formal written legal document, particularly where country procurators are concerned. Any letter instructing or desiring the agent to act, if properly sub- scribed, sufficed. Provincial clients tended to be hardy and independent peo- ple who wrote plainly and to the point. They often had considerable experience of business and knew their own minds. One letter to the writer in Dowally, James Stewart, begins very directly:
Dr Sir Inclosed youl Be pleased to receive an execution against the following complaint for which youl use imedeat diligence and I shall pay you hand- somely against the market day.39
A written mandate was always safest for the client. Without it, there was a strong presumption that the procurator “acted agreeably to the Orders he received from his Employer.”40 The lawyer’s authority could be expressly defined and limited in his mandate. Moreover, without specific written instruc- tions it might be argued that a procurator could not make an acknowledge- ment of fact that would bind his absent client.41 Where the mandate was given verbally, then it was possible to prove it by the testimony of two witnesses or by the oath of the party who was said to have granted it. However, as was pointed out in 1737 in a pleading signed by Patrick Boyle, care should be taken before allowing any equivalent to a written man- date. When it came to local procurators, if any indulgence were shown to that “Tribe, considering their common Character, for Probity and Ability, the Lieges might come to suffer.”42 It was possible to infer a mandate from circumstances. A presumption might arise, for instance, where a party knew an action had been brought in his name and did nothing to deny it. In an argument put forward by Henry Home (later Lord Kames) in 1748, he cited the maxim qui tacet consentire videtur
39 nrs, Commissary of Dunkeld, miscellaneous papers, CC7/18/3. 40 alsp, Arniston collection, vol. 57, Information for John Baillie, Writer in Edinburgh, Defender against Jean Lockhart, and Andrew Storie Surgeon in Peatpots, her Husband, Pursuers, 29 Jun. 1759, p. 15. 41 This was on the authority of van Bourits, De Officio Advocati, 203, cited in alsp, Kilkerran collection, vol. 16, The Petition of Alexander Clark, writer in Inverness, 18 Jan. 1749, pp. 6–7. For further citation of van Bourits (Bouricius), see below, page 156. 42 alsp, Miscellaneous collection, ser. 17, vol. (1737–43), no. 48, Answers for Alexander Fairlie, Merchant in Kilbride; to the Petition of Thomas Leask in Seamiln, 16 Jun. 1737, p. 2.
(he who is silent is regarded as agreeing).43 Home in that case argued for the heir of George Muirhead, town agent of Haddington, that Muirhead had received a mandate from the incorporated trades of the town to bring actions against the elected councillors. He relied on evidence that the litigation, in the Court of Session, was well-known in the town, and that Muirhead had expended considerable sums on it, but that none of the deacons of the trades had disclaimed it. Thomas Hay, arguing for the trade incorporations, admitted that a private person could grant a verbal mandate. However, he argued that it was impossible for an incorporation to do so because its officers had to operate through written resolutions: silence could not bind the members, only the “Minutes & Sederunts of the Incorporation” could do so.44 The general princi- ple, despite difficulties of proof, was, however, clearly accepted that actions could be carried on “upon the authoritie of verball orders.”45 It was possible to mandate more than one procurator and normal to do so in the context of employing a procurator to register a deed, for example. In litigation, it was unusual to mandate more than one procurator in the infe- rior courts unless an attempt was being made to deny an opponent their services. Having two procurators actually appear together for one litigant was highly unusual and a matter for remark, as it was when two appeared on behalf of Robert Elliot, described as an “opulent farmer” in Roxburghshire, in a case in 1767.46 Any mandate, however given, did not survive the client (mortuo mandatore, perit mandatum). This maxim was discussed in 1743 when the Edinburgh writer, William Gray, found his position as factor brought into question when his client died shortly after his appointment was made.47 The testamentary tutors, guarding the late man’s estate, suggested that Gray had importuned his client into granting it. So long as he did remain alive, however, the client could freely disclaim the authority of his lawyer. The effect of such a renunciation would be to make the lawyer liable, should he continue to act, because he would then be regarded as acting vexatiously.
43 East Lothian Archives [elca], “The Petition of John Muirhead of Breadisholm, executor dative to the deceast George Muirhead writer in Edinburgh”, 13 Jul. 1748, B30/102/31. 44 Ibid., “Answers for the Incoporation of the Trades of Haddington”, 28 Jul. 1748, B30/102/34, fol. 5. 45 Ibid., “Petition of John Muirhead”, B30/102/31, fol. 6. 46 alsp, Swinton collection, vol. 9, no. 21, Answers for Charles Scott in Kirntown to the Petition of Robert Elliot in Milburntholm, 4 Aug. 1767, p. 3. 47 alsp, Hamilton-Gordon, 1st collection, vol. 25, no. 46, The Petition for John Walkinshaw of that ilk and others, tutors nominated by Alexander Johnston of Straiton, 10 Feb. 1743, pp. 2–3.
If no mandate could be established, then the only other basis on which a client could be held liable to an agent was as a negotiorum gestor (actione negotiorum gestorum). This was another civilian principle which the advocate David Rae formulated in 1781 as follows:
where business is done by one for behoof [benefit] of another, even with- out his knowledge or consent, the gestor is entitled to indemnification from him, especially if there appears to be a negotium utiliter gestum [an item of business usefully completed].48
In an earlier case, where it was argued that a man may be indemnified, on the basis of negotiorum gestio, if he had interposed himself in the affairs of another and become a cautioner for him in his absence or without his knowledge and consent, the action was said to have been “introduced by the power of the Pretor [Praetor], that no Man may reap Benefit without paying for it.”49 Litigation concerning mandates was uncommon. It does, however, provide an insight into how cases were conducted. In 1736 the Edinburgh writer James Spence attempted to use a receipt for payment from the convenor of the trades in Leith to found an action to recover expenses, which he was due in a separate action for defending two Leith brewers, Arnot and Haddoway, in Edinburgh’s dean of guild court for practising their trade without being admitted burgesses of that town.50 Spence had been engaged in a separate and later action by the four Incorporations (or societies) of Leith against Edinburgh, but he had no mandate from them to defend the brewers. The lord ordinary clearly thought, however, that Spence’s own receipt for payment of part of his expenses from the convenor of one of the incorporations, might function as an implied mandate, although the convenor claimed that no payments had been made in respect of the brewers’ case. Spence, for his part, argued that the two actions were always understood to be linked because they both concerned one “grand Point”, that is, whether Leith was annexed to the royalty of Edinburgh. The incorporations, he argued, were fully involved in the brewers’ case, to the extent that some of their members
48 alsp, Arniston collection, vol. 142, no. 32, The Petition of Henry Dagge, Esq., Counsellor at Law in London, and John Watt, Writer to the Signet, his Attorney, 24 Jan. 1781, p. 6. 49 alsp, Hamilton-Gordon, 2nd collection, vol. 36, no. 23, Answers for Hugh Lord Semple, Defender, to the Petition of Mr Alexander Lockhart, Advocate, with Consent of George Lockhart of Carnwath, Pursuers, 9 Nov. 1738, p. 2. 50 alsp, Hamilton-Gordon, 1st collection, vol. 35, no. 32, Answers for James Spence Writer in Edinburgh To the Petition of the Trades of Leith, and Hector Shiels their Conveener, 3 Jun. 1736, p. 1.
were daily with me, informing me of Facts and Circumstances, some- times in Edinburgh, sometimes in Leith, and elsewhere, but also attended several Consultations; and, by their fair and alluring Promises, I was made to believe the whole Societies were to be my Pay-masters as well as the said George Arnot and Thomas Haddoway.
In effect, they had made the brewers’ case their own: the brewers’ case was a matter of public concern whose successful resolution would benefit the Incorporations and everyone else in Leith. If the payments made by the conve- nor could be attributed to the brewers’ case, then this might have constituted ratification of an implied mandate. Spence’s difficulty was that the evidence for this was his own receipt and his own account book which he claimed to have made up, whenever he had the time, from his “day book.” Spence also relied on the principle of unjustified enrichment because in his view the Incorporations had clearly benefited from the brewers’ case. Spence invited the judges to follow
the Rules of the Common Law, by which, even a Person who is intending to do his own Business, yet, if it be beneficial to another, has an Action in so far as that other is locupletior factus by the Management, as Voet observes upon the Title, De neg. gestis, par. 9th.51
As a parallel, Spence mentioned the case of a bond entered into by some Glasgow tobacco merchants to raise money for their common defence against a suit in the Court of Exchequer. All the tobacco merchants, whether or not they had signed the bond, were found liable to pay for a legal defence from which they all benefited equally.52 This case was not quite the same, however, because the brewers’ action was separate and it was a strained interpretation to suggest that they primarily fought on behalf of their community rather than themselves. Despite the difference in status between an advocate and a procurator, a procurator had much greater freedom in one particular: he was never bound to
51 Ibid., p. 7. The reference is to Johannes Voet (1657–1713), Commentarius ad Pandectas libri quinquginta (2nd ed., The Hague: Abraham de Hondt, 1707), 3.5.9. By “the Common Law” he meant the ius commune. 52 Richard Graham v Merchants of Glasgow; also James Campbell of London v the Creditors on the Equivalent, 1723. The former case concerned the tobacco trade and papers discussing it can be found at nrs, Court of Session, extracted processes, CS172/26 (see esp. “Act Richard Graham v Archibald Ramsay”, 19 Feb. 1730, fols. 4–6).
53 See, for example, Joachim Mynsinger, Singularium observationum ivicii imperialis camerae centuria Prima Ioachimo Mynsingero a Frundeck (Venice, 1613), Centuria iii, Obs. 32, “is enim invitus mandatum non compellitur suscipere.” Cf “Advocatus compelli potest ad praestandum patrocinium clienti.” 54 alsp, Arniston collection, vol. 169, no. 34; Ibid., vol. 152, no. 10. 55 E.g. Reed and Parkinson, London merchants, employed the writer Thomas Wilson: alsp, Hermand collection, vol. 20, no. 12. 56 alsp, Arniston collection, vol. 86, no. 9; Ibid., vol. 142, no. 32. 57 alsp, Miscellaneous collection, ser. 17, vol. 1748–50, no. 166, Memorial for Thomas Anderson late merchant in Coldingham, 24 Jul. 1747. It was alleged that the theft was invented by Anderson in a bid to defraud his creditors. Lorain was later sheriff clerk. 58 alsp, Arniston collection, vol. 180, no. 24. 59 alsp, Kilkerran collection, vol. 3, no. 34, The Petition of John Pringle Writer in Edinburgh, and John Porteous of Glenkirk, 27 Feb. 1738.
La Font had appointed John Porteous, a London-based merchant, as his factor for uplifting all his debts outside of French dominions. Porteous had appointed John Pringle, an Edinburgh writer, to receive La Font’s debts in Scotland. One alleged debt, owed by the advocate David Kennedy, had been incurred while Kennedy was in France as companion to the duke of Hamilton. The duke, in fact, had paid Kennedy’s account when he paid his own. Once this fact was established, the question arose whether Pringle might have any liability for Kennedy’s expenses in defending an action against him which, it was admitted on both sides, had been brought in good faith. Lord Drummore had found that Pringle, by becoming pursuer for a foreign litigant, had made himself liable jointly with Porteous and La Font. Pringle disputed this, arguing on the basis of Johannes Voet’s opinion on Roman law, that he could have no liability because he did not take the action in his own name and he held no funds from La Font, indeed he himself had sustained the cost of the action.60
Numbers
One of the key differences between provincial practice and the law in Edinburgh was the number of practitioners. In some parts of Scotland, even well into the eighteenth century, lawyers existed in quite modest numbers. Thanks to the Court of Session’s records, and the minute books of the Faculty of Advocates and ws Society, the number of advocates and writers to the signet admitted to practise is well known (although the number admitted over a period of time is not the same as the number actually in practice at any given date). To take the ws Society, it is clear that it grew larger in the second half of the century and that the rate of growth increased substantially towards 1800. A helpful printed list of practising members in 1789 contained 176 names; by 1799, the number had expanded to 262 and reached 295 by 1803.61 These lists were in order of seniority. The commissioners of the Society, the senior men, were all marked at the beginning of the list; those nominated to act for the poor, the raw recruits, appeared at the end. It is more difficult to estimate the number of those who worked as procura- tors in the inferior courts. In 1785 the ‘attorney tax’ was introduced, despite
60 Voet, Commentarius ad Pandectas libri quinquaginta, 3.3.20. 61 The printed list appears in nrs, Court of Session, miscellaneous administrative papers, CS94/84. The other lists appear in sl, ws Society Sederunt book 1785–1804, fols. 238–9, 357–60, 513–518.
62 See John Finlay, “‘Tax the attornies!’ Stamp duty and the Scottish legal profession in the eighteenth century,” Journal of Scottish Historical Studies 34 (2014): 141–166. 63 nrs, Sheriff court of Lanark, SC38/1/37. 64 nrs, Sheriff court of Duns, diet books, SC60/2/5. 65 Ibid., SC60/2/15. A 21st procurator, George Home from Coldingham, was added in during 1782. The next volume, in 1785, shows three additions but two losses to give a total of 22 procurators: SC60/2/16. 66 nrs, Sheriff court of Inverness, minute book 1761–1764, SC29/1/1B. 67 nrs, Sheriff court of Peebles, diet books, SC42/1/10. 68 nrs, Sheriff court of Banff, record of memorandums, 1785, SC2/19/1.
The size of the local bar varied substantially according to the importance of the court and the amount of business it was capable of attracting. The make- up of the bar in the sheriff court of Berwickshire provides a reminder of the fact that some burghs had relatively few writers and that, as a result, their bai- lie courts would have had only a handful of procurators. While five of the twelve procurators in the Berwickshire court in 1761 came from Kelso, only two came from Lauder and one from Melrose. In the same year, there were also only four procurators in the stewart court of Kirkcudbright.69 The number admitted did not even necessarily reflect the number available to practise. In 1793, in the sheriff court of Clackmannan, eight procurators were listed as having been entered to practise.70 All of them, except for one writer in Stirling, were based in Alloa. However, one of them was mentally ill and unable to practise, while two others had never received a statutory stamped license to act as procurator in the court and so presumably had never done so. A further two had not practised for nearly a year and another, Charles Watson, had “not produced any stamped certificate to be signed or reg[istra]t” by the clerk of court. A process of elimination suggests that there may only have been two properly licensed and functioning procurators. This contrasts with the sheriff court of Renfrew in September 1747 (which seems to have exercised jurisdiction more or less concurrently with the regality court at that time) where the number of procurators extended to eleven, including one each from nearby Glasgow, Kilbarchan and Lochwinnoch.71 This court sat at Paisley, “the great manufacturing town” as senior judges described it in 1813, which took in “the great seaports of Greenock & Port Glasgow.”72 These factors had by then become increasingly important when it came to selecting suitable sheriffs depute for promotion to the Court of Session bench. Courts such as Renfrew generated complex and varied business which not only honed the skills of the sheriff but sustained, over generations, a sizeable bar of local procurators. Indeed the sheriff court of the lower ward of Renfrewshire was home to the Faculty of Procurators in Greenock, which numbered 27 members in 1816 including three writers in Port Glasgow.73
69 nrs, SC16/2/7. This did not stop the judges in the stewart court from being very successful in gaining promotion to the bench in the Court of Session: all three sheriffs immediately after 1748 became lords of session (Glenlee, Ankerville and Rockville). 70 nrs, Sheriff court of Alloa, book of mandates, SC64/19/1. 71 nrs, Sheriff court of Paisley, SC58/1/13. See entry dated 24 Sep. 1747. 72 nrs, Papers of the Society of Writers to the Signet, GD495/48/1/48. 73 Glasgow City Archives [gca], TD501/1/11.
At Campbeltown in 1770, two procurators, James Pollock and Alexander McAlester (probably the entire number attached to the sheriff and admiralty courts there), petitioned the sheriff depute of Argyll to nominate a substitute to hold court in the town. Business was accumulating and they were finding it difficult to manage the complaints of the clients who employed them. As they informed the sheriff-depute:
It will readily occurr [sic] to your Lordship That a town like Campbeltown with between Five and six thousand inhabitants supported chiefly by Trade and so large and populous a Country as Kintyre must be in a very unhappy situation while they remain without any sheriff commissary or admiralty court and perhaps it will not be found anywhere else in Scotland that such a Town as Campbeltown and so throng inhabited the Country around it, have none of the above courts nearer than sixty miles.74
If only the courts could sit, the prospects for practice must have been good given the virtual monopoly these two men enjoyed. Fifteen years later, James Pollock was still in practice at Campbeltown, and the bar had expanded from two members to three.75 This was a small but seemingly viable number. Three was also the number of procurators in Selkirk in 1702 who joined with the town clerk in taking the oath of allegiance to Queen Anne.76 In some places with a small practising bar the existing procurators were determined to keep it that way. Protectionism was rife and a number of intend- ing procurators had to resort to litigation when their attempts to gain admission to certain courts were rejected. This is something that will be discussed later when looking at legal societies. For the moment, it is simply worth mentioning that the size of the bar in some places may have been kept artificially low. At the other end of the scale were the practitioners in the inferior courts of the major population centres. Edinburgh, Aberdeen and Glasgow all had important local societies of inferior court practitioners. In Edinburgh the bodies of practitioners admitted respectively before the commissary, sheriff and burgh courts, consisted largely of the same men, admitted according to parallel but identical procedures in each of the courts. This reflected an act of court of the commissaries of Edinburgh in 1707; an act of the sheriff court in
74 nrs, Sheriff court of Inveraray, Papers of Alexander McAlester, writer in Campbeltown, SC54/22/9/9. 75 Ibid., SC54/23/11/4. 76 Scottish Borders Archive (Hawick) [sba], D/48/18/2.
1765 (at the time when the burgh granted a seal of cause to the Society of Procurators); and the royal charter obtained by the Society of Solicitors at Law in Edinburgh in 1780. The register of the latter society records 28 admissions in the period 1781–1799. During the same period, the town council minutes record slightly more admis- sions of practitioners in the burgh court. John Ormiston and Alexander Ponton, in 1788 and 1792 respectively, were admitted as procurators by the magistrates but do not appear to have been admitted as Solicitors at Law. The Society of Advocates in Aberdeen admitted 112 members in the course of the eighteenth century, including 33 who joined the society in the period from 1781. The Faculty of Procurators in Glasgow, where the commissary court was long the dominant place of business, admitted 74 members between November 1781 and the end of 1799. In 1796, its membership stood at ninety-one.77 By 1827 this had swelled to 174 and trend for growth continued throughout the century, with the Faculty by 1895 almost doubling in size to 330 members.78 The introduction of the so-called attorney tax in 1785 managed to unite in resentment many societies and groups of lawyers.79 A hastily arranged Convention of Delegates, held in Edinburgh in December 1785, was an attempt to organise this opposition, although the new tax was not removed. A lasting legacy, however, was an annual Convention of Delegates of the Provincial Bar of Scotland, sometimes referred to as the “Delegates from the different coun- ties”, which continued into the nineteenth century.80 Despite the requirement on procurators to pay for an annual stamped cer- tificate, it is likely that in many courts the ranks of those admitted to practise included some who had largely or entirely given up active participation. Margaret McFarlane, in an action for declaratory of marriage, adherence and aliment against her alleged husband, the Glasgow writer John Anderson, sug- gested in 1794 that “there are not above 20 procurators who do business before the Courts of Glasgow”, few of whom were as successful as Anderson, “an exceeding active young man, of great abilities.”81 In reply, Anderson
77 Royal Faculty of Procurators in Glasgow [rfpg], Sederunt book 1796–1832, fol. 18. The ‘Royal Faculty’, until its 1796 royal charter, was known simply as the Faculty of Procurators and will generally be so described here. 78 Ibid., fols. 480–1; nrs, Lord Advocate’s Department, AD56/170, George Whigham to Sir Charles Pearson mp, 11 Mar. 1895. 79 See Finlay, “Tax the attornies!,” 146–8. 80 This organisation, which remains little known, is rarely mentioned. But see, e.g. nrs, Minute book of the Society of Solicitors at Law, 1822–1830, GD330/73, fols. 316, 331, 406. 81 nrs, Edinburgh commissary court, CC8/6/901, Answers for Margaret Mcfarlane to the Petition of John Anderson, 17 Feb. 1794, p. 7.
downplayed his alleged success and produced a certificate stating that there were seventy admitted procurators while acknowledging that ten of them were not in practice.82 This provides another parallel with the Supreme Court where advocates, in particular, continued as members of the bar even after retirement or abandoning their practice. In this way, they prolonged their enjoyment of the privileges of being members of the College of Justice. It was not until the nineteenth century, after the economic value of those privileges had been largely removed, that the minutes of the Faculty of Advocates formally record notification of the retirement of members. It was the practice, however, to grant retiring members on request continuing access to the Advocates’ Library, even when they resigned in order to enter a different branch of the profession.83
Local Societies
Enough has been said so far to indicate that the legal profession in Scotland, in all of its branches, was about communities of practitioners as well as individu- als. Those communities were best exemplified where they came together to form their own societies (see Chapter Seven). The motivation for doing so was largely self-interest but lawyers tried to make the case that in combining together, with the support or acquiescence of the local court, they also sought to safeguard the public interest. In the inferior courts procurators in local societies created monopolies of legal practice to restrict the right of audience for the benefit of their current members. It was difficult to argue that such an anti-competitive practice was in the public interest, particularly because it might make it possible for a wealthier litigant to retain the services of all of the practitioners to the detri- ment of his opponent. Indeed, in small courts the totality of practitioners might amount to no more than three or four and, as it was sometimes alleged, this number might even include the clerk of court.84 The free competition at the bar of the Court of Session that was a hallmark of the Faculty of Advocates was, in some ways, more apparent than real. Certainly the numerus clausus rule that was instituted in 1532, prescribing a
82 Ibid., Act and Remitt & Decreet for Expences, Margaret Mcfarlane against John Anderson, 11 Feb. 1795, fol. 45. On this case, see below, page 125. 83 E.g. al, Minute Book of the Faculty of Advocates, FR8, fol. 489. 84 John Finlay, “Pettyfoggers, regulation and local courts in early modern Scotland,” Scottish Historical Review 87 (2008): 54.
85 Ibid., “Advocates unlimited: the numerus clausus and the College of Justice in Scotland” Historical Research 82 (2008): 206–228, esp. 214. 86 Ibid., “Lawyers and the Early Modern State”, 390–392. 87 On this process in Dumfries, see ibid., “Corruption, regionalism and legal practice,” 149; Finlay, “Legal education, 1650–1850,” 124–125. The earliest surviving record of an examina- tion process dates from Dumfries in 1793: Hector M’Kechnie, “An eighteenth-century Dumfries procurators’ examination,” Juridical Review 43 (1931): 337–348. The original is in nrs, GD165/box5/5/8 (I owe Dr David J. Brown my thanks for identifying this call number). 88 One of the town’s assessors was also involved in the process; Finlay, Community of the College of Justice, 67. 89 eca, Edinburgh tcm, SL1/1/87 fol. 155.
court at Leith is not surely the only school where a competent knowledge of the law is to be attained; nor is the distance betwixt Leith and Edinburgh so great as that the laws and forms should be materially differ- ent from one another.93
There was a clear danger that the public interest in the proceedings of any local court might be subverted by the private interest of a cabal of procurators. As Dundas made clear, “no inferior judge can give sanction to the advance- ment of the interested views of a particular set of procurators”, particularly in Leith where under the 1722 regulations “any three of them, once admitted, may
90 Some of these cases are discussed in Finlay, “Pettyfoggers, regulation and local courts,” 45–54, where the general issue of public interest justification is also further discussed. 91 alsp, Arniston collection, vol. 80, no. 24, Memorial for John Young Writer, late in Edinburgh, now in Leith, Pursuer in an Advocation against Charles Hogg, Dionysius Thomson, and Alexander Nielson, styling themselves the Society of Procurators at the Court of Leith, 18 Dec. 1765, p.2. 92 Ibid., Information for Charles Hogg, Dionysius Thomson, and Alexander Neilson, Procurators of Leith, Defenders; against John Young Writer in Edinburgh, Pursuer, 17 Dec. 1765, p. 6. 93 Ibid., Memorial for John Young Writer, 18 Dec. 1765, p. 4.
The same day the Dean & his brethren hereby prohibite & discharge any persone or persons quatsumever to appeare & procure before any of the courts in any tyme hereafter unless entered with the Fraternity, or till they applye thereto & be entered with the Dean & his brethren.94
The Stirling writers appointed their own procurator fiscal to enforce the rules of their society and ensure the punishment of anyone trying to practise law independently.95 In 1783, for example, three writers who were not members, but who practised before the local courts, were warned by the fiscal to attend the next meeting of the Fraternity or face prosecution. It is curious to note, in passing, that the ‘Fraternity’ should choose to give its presiding officer the title of ‘dean’, in imitation of the Faculty of Advocates. Indeed, the Fraternity is sometimes referred to in its own minutes, at least early in the eighteenth cen- tury, as a ‘faculty.’96
Independence
Standards of conduct and behaviour amongst lawyers were a matter for the judge, and ultimately the lords of session, to determine. Allegations of poor standards, of bias and partiality, were made in relation to the proceedings of a number of inferior courts. Informal arrangements abounded in some very small jurisdictions where the judge might be in the pocket of the clerk of court, or the clerk might make money on the side by acting as a procurator.97 Such behaviour could easily lead to allegations of criminal wrongdoing. In 1752, in Banff sheriff court, the procurator William Gordon sought letters of
94 Stirling Council Archives [sca], Minute book of the Fraternity of Writers, PD145/1. 95 The procurator fiscal was a public prosecutor. His office is discussed in detail in Chapter Ten below. 96 By a coincidence, Charles Bennet, dean of the Stirling writers, shared the same surname as Robert Bennet, the contemporary dean of the Faculty of Advocates. There is no evidence that they were related. 97 For examples, see Finlay, “Pettyfoggers, regulation and local courts,” 53–4.
when clerks & procurators are united in one & the same person, there is scarce a possibility of answering for every little mistake that may fall in the way in the minutes of Court.98
Innes duplied, however, that the minute in the diet book had been dictated from the bench, by the sheriff depute directly to the sheriff clerk’s servant, without him personally “having the least hand or concern about it” and that no error or forgery could be imputed to him. As a response to such disputes, and to one case in Paisley in particular, the lords of session in 1783, in their role as supervisors of the administration of justice in Scotland, made an Act of Sederunt (rule of court) intended to improve the level of impartiality of those presiding in the local courts.99 The wording clearly demonstrates their aim:
Considering that it is contrary to Law and Subversive of the impartial administration of Justice for any Judge to act as procurator or Agent in any cause depending before his Court and as it is a similar abuse that any Clerk of Court or his Depute having trust and custody of processes and of writes produced therein and being imployed in extracting of Acts and Decreets should be agents or procurators in the s[ai]d processes.100
The judges went on to note, in cases depending before them, evidence of “ille- gal and improper practices” having prevailed in some of the inferior courts. Therefore inferior judges and their clerks were prohibited from acting person- ally, or through intermediaries, as agents in their courts. They were also prohib- ited from giving advice in such cases. Copies of this Act of Sederunt were transmitted throughout the country to be displayed in local courts.
98 nrs, Sheriff court of Banff, diet books, SC2/1/12, 28 Apr. 1752. On Innes, see John Finlay, ed. Admission Register of Notaries Public, 1700–1799 (2 vols, Edinburgh: Scottish Record Society, 2012) [henceforth arnp], i, no. 1093. 99 The Paisley case is discussed below, at page 276. 100 nrs, Court of Session, books of sederunt, CS1/16, fol. 156v (6 Mar. 1783).
The Act itself reflected standards that applied in the Court of Session, where it had long been recognised that it was incompatible with the nature of his office for any clerk, who had custody of all the papers in processes coming before the court, to act on behalf of litigants.101 There is evidence that it had an immediate effect. In Perth, for example, the tradition of combining the office of town clerk depute (by default, also clerk of the bailie court) with that of burgh procurator fiscal was immediately ended. Nepotism was not. When the incumbent, Patrick Miller, brought the Act of Sederunt to the council’s atten- tion, he retained his place as clerk depute while the office of fiscal was given to his son, James.102 On the other hand, in Glasgow, where John Wilson was elected one of the town clerks in 1783, it had long been the norm for anyone so elected to cease his legal practice. Wilson was “obliged to give up the whole of his Court business” which meant disappointment for John Anderson, who had been one of his clerks for two years and whose services were no longer required.103 The principle that a clerk of court should not be partisan, or subject to the suspicion of being so, was a rule firmly enforced, at least in the larger towns. This can be seen in a petition brought by James Laing against Edinburgh town council in 1797. Laing, having joined the Society of Solicitors at Law and been admitted to most of Edinburgh’s inferior courts, had been refused the right to practise by the magistrates of Edinburgh.104 His admission to the burgh court would infringe the 1783 Act because, as early as 1790, Laing had been appointed clerk in the Canongate and, in April 1792, he was made one of the joint clerk deputes of Edinburgh.105 Having resigned this position, the council directed the magistrates to admit him to their court. Outside of the capital, however, it is not entirely clear how well observed the new standard was. In 1807 the sheriff of Linlithgow had to ask to be supplied with a copy of the 1783 Act when confronted with a petition from John Martin craving that he be admitted as a procurator in his court. The alleged ground of disqualification was that Martin had been a confidante of the sheriff clerk and had helped manage the business in his office. Martin had worked in the clerk’s office, collecting his fees, but apart from that he claimed largely to have been
101 Finlay, Community of the College, 191. The same was true, for example, in Edinburgh’s dean of guild court: eca, Edinburgh tcm, SL1/1/72, fols. 454–455. 102 pkca, Perth tcm, PE1/1/3, fol. 310. Another son, Walter, was made a clerk depute in 1776 while his father retained office and his right to its fees: pkca, Perth tcm, PE1/1/3, fol. 13. 103 nrs, Petition of John Anderson, CC8/ 6/981, fol. 5. 104 eca, Edinburgh tcm, vol. 127, fols. 583–4. 105 Ibid., vol. 117, fol. 59; vol. 119, fol. 237.
It has been a subject of deep regret in the County of Linlithgow that for a period of years the Business of sheriff substitute, sheriff clerk & Procurator, should have been carried on & conducted in one & the same office or apartment, thereby contaminating in an evident degree the purity of Judicial Proceedings.106
Acknowledging the weight of this, Martin agreed to move out of the office, but he insisted that merely assisting the sheriff clerk in his non court-related busi- ness did not infringe the spirit of the 1783 Act. The real ground of objection is perhaps found in the suggestion that Martin had entered the clerk’s office on the understanding that, when he became a procurator, the sheriff clerk would quietly send business his way. It was further alleged that, when that came about, his salary for the work he did for the sheriff clerk would then be discreetly withdrawn. Coupled with this allegation was the fact that Martin, having moved out of the clerk’s office, had then moved into his house where he continued to conduct business on his behalf. This was not consistent with a man seeking to develop his business independently as a procurator. In the circumstances, the sheriff put off any decision, preferring to wait to see how things developed “for some length of time” before deciding whether or not Martin should be admitted.
Writing Chambers
In larger urban centres, particularly Edinburgh and, later, Glasgow, lawyers began to run writing chambers of significant size. In 1816, John Buchanan became the tenth inhabitant of the writing chamber of the firm of Ballingall and Ballingall in Glasgow. Some sixty years later, he described his fellow apprentices and clerks in great detail (see Appendix, document no. 10). Relatively little is known about the layout of writing chambers in the eigh- teenth century, although there are occasional descriptions.107 The impression is often given of cramped accommodation for clerks, where every spare inch was taken up with desks or papers, where food was cooked on the premises,
106 nrs, Sheriff court of Linlithgow, procurators’ petitions, SC41/32/1. 107 Finlay, Community of the College of Justice, 199.
108 [J. Buchanan], Reminiscences in connection with the legal profession in Glasgow by a mem- ber of the Faculty of Procurators (Glasgow: James Maclehose, 1873), 12. 109 gca, Inventory & Valuation of the Furniture &c in the Writing Chambers of Mitchell, Graham & Mitchell Esquires, 9 Jan. 1830, T-MJ 389/3. 110 gca, Correspondence of Thomas and Robert Grahame, T-MJ/337, Thomas Grahame to James Grahame, 18 Dec. 1785.
111 “Pawkie” means tricky. [Buchanan], Reminiscences, 3–4 (handwritten notes by the author in the copy at gul, Spec. Coll., Mu24-c.3).
Agents who conduct causes before your Lordships, have often a very troublesome and disagreeable task. They are employed by clients either directly, or by means of some interposed person in the country, with whom the clients are better acquainted. They manage the business with anxious attention, fatigue themselves with a tedious correspondence, and all the while are advancing their money.1
The lawyers who worked in Scotland’s central civil court, the Court of Session in Edinburgh, drew their clients from across Scotland. As well as actions raised at first instance before the court, which enjoyed exclusive jurisdiction in a range of matters, a number of actions which originated in the inferior courts came to be heard before Scotland’s supreme judges, the lords of council and session. This might be the result of a bill of suspension, asking for review of an inferior judge’s interlocutor, or by a bill of advocation, in which grounds would be asserted bringing into question the competence of the inferior court. The legal strategies pursued in the Court of Session, and the arguments that were presented there, owed much to the input of local lawyers, just as central court practitioners often had a role in directing litigation before the inferior courts. The relationship was symbiotic and illustrative of the fact that legal practice did not take place in isolation. Even sole practitioners in distant coun- ties had to deal with messengers, notaries, writers to the signet or even directly with counsel. By the end of the eighteenth century, litigants and practitioners had ready access to almanacs and post office directories where they might discover the names and addresses of Edinburgh law agents. If these failed, old-fashioned methods worked just as well. In 1791 Alexander Hay in Nairn, for example, received a document from Archibald Swinton, who had only been a writer to the signet since 1788, with no return address. Unable to find Swinton in any of the lists of Edinburgh practitioners to which he had access, he managed to return the document via his own local agent in Inverness, Campbell McIntosh.2
1 alsp, Hermand collection, vol. 10, no. 6, Information for Robert Boswell, Writer to the Signet, Pursuer; Against Thomas Ronald in Mackailston, Defender, 5 Jul. 1783, p. 1 (per James Boswell, advocate). 2 nrs, Fraser-Mackintosh collection, GD128/41/5A.
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Corresponding Agents: Graham of Airth
The nature of the lawyer-client relationship is best revealed in private letters and a good example is the correspondence concerning the disordered affairs of William Graham of Airth (near Falkirk in Stirlingshire), son of the advocate and judge-admiral James Graham (d. 1746). In the last years of his life, Graham senior had contracted debts in excess of £4000 sterling.3 He had burdened his estate with substantial provisions for his daughters, to take effect after his death. To make matters worse, William also faced demands for payment upon bills granted by his late elder brother. Around 1753 he recruited a new legal team to replace his factor, John Lumsden ws.4 His new local agent and factor was the writer Robert Leckie, originally from the nearby parish of Kippen, who had since 1733 been a member of the Fraternity of Writers in Stirling.5 Meanwhile, in Edinburgh, John Mackenzie of Delvine ws took over his affairs. Although described by one political historian as an “arch-schemer but indiffer- ent lawyer”, Mackenzie was experienced and seems to have been well enough respected within the profession.6 His accounts show that he counted five earls and a countess amongst his clients in the 1750s.7 Lord Lovat regarded him as “a man of strict truth & sincerity” in 1740, although he was later to revise his opin- ion when Mackenzie acted for one of his opponents.8 Much of the correspondence between Leckie and Mackenzie survives until Leckie’s death in 1759, as does some of the correspondence Mackenzie had directly with William Graham. Mackenzie was the driving force in these rela- tionships. He would see to the drafting of important documents and, although Leckie had oversight of their subscription by the client, this was generally done according to Mackenzie’s instructions.9 Mackenzie also dealt with queries from Leckie, for example advising on the sum a superior could reasonably
3 nls, Airth papers, ms 10851, fols. 36–122. Between Nov. 1728 and Oct. 1746 he granted indi- vidually at least 28 bonds, one of which, to his own coachman Thomas Jamieson in 1743, was for arrears of wages of £50 which at the time he lacked the ability to pay. The figure excludes joint debts incurred on other bonds. 4 nls, Airth papers, ms 10862, fols. 60r, 210r. 5 sca, Fraternity of Writers in Stirling, minute book, PD145/1. Leckie was admitted notary pub- lic on 21 Nov 1732 at the age of 22: Finlay, ed. arnp, i no. 933. 6 William Ferguson, “Electoral law and procedure in eighteenth and early nineteenth century Scotland” (PhD diss., University of Glasgow, 1957), 179. The basis for this assessment is unclear. See also Finlay, Community of the College of Justice, 165. 7 nls, Delvine papers, ms 1195. 8 nrs, Fraser papers, RH15/13/52, 20 Jun. 1740, 7 Aug. 1741, 21 Aug. 1741. 9 E.g. nls, Airth papers, ms 10862 fol. 140r.
for tho I dunn Mr Lumsdain dailly which is an invidious sort of task & often misconstructed in a successor in office Im no nearer any purpose… At the same time various people are sent to me in quality of Mr Grahams doer & I can speak sense to none of them, patience is my only remedy….12
Eventually, by September 1753, Mackenzie had received the papers. He had an inventory made plus a copy so that Leckie might be able to refer to it locally. The inventory was lengthy but so organised that any deed required could “be touch’t in a few minutes.”13 Mackenzie and Leckie had two main preoccupations which pepper the bulk of their surviving correspondence. The first was to ascertain the extent of debts and recover any money still owing to the estate. Thus Mackenzie, without much optimism given the passage of time, tried to recover from the town of Dunbar unpaid payments of James Graham’s pension for his work as an advocate.14 The secured debts were a better prospect, particularly one on the estate of Anne, duchess of Hamilton. In January 1758 Mackenzie wrote to Leckie that
10 Ibid., fols. 87r, 203r. 11 Ibid., fol. 5r. 12 Ibid., fol. 10r. 13 Ibid., fol. 27r. A good example of an inventory prepared for a litigation in 1722, of the writs of John Colville, can be found in nrs, Court of Session, unextracted processes, CS228/C/2/63. The writs, separated into 23 bundles, are carefully described and dated. 14 Ibid., fol. 65r. James Graham, in this correspondence, is usually referred to simply as “the Judge.” Lord Kames referred to him as “Judge Graham”, presumably a general designation to differentiate him from other advocates of the same name: Geoffrey Scott and Frederick Pottle, ed. The Private Papers of James Boswell (18 vols, New York, 1928–34), vol. xv, 271. In 1745, Dunbar owed Graham unpaid pension for the period 1731–1744 (at £2 per annum): elca, Dunbar tcm, DUN/2/1/1/4, entry dated 6 Mar. 1745.
Duke Hamilton’s people are now in the throng of their plea with Douglas I may as well talk at present to the steeple of Falkirk as any of his Doers about payment of money.19
Meanwhile the Airth estate had to be protected from its creditors, not all of whom were genuine. An account submitted by Graham of Birdston (near Campsie) in September 1753 was treated with scepticism. Birdston had been a servant to James Graham but an unpaid one. There was no evidence of any account rendered in the last ten years of Graham’s life and he held no status as a factor. Mackenzie mildly rebuked his local colleague for believing they were dealing with an honest man and, if Birdston did not go away, favoured raising a process against him. His directions in this affair have a slightly patronising tone towards Leckie, though Mackenzie made his point forcibly:
In short, tho every man who serves for hyre, as both you & I do ought to be fairly paid yet when a man fawns on a father & is proud of serving him
15 nls, Airth papers, ms 10858, fol. 61r; ms 10863 fols. 40r, 61r. 16 Ibid., ms 10858 fols. 24r-v. 17 Ibid., fols. 61r, 81r. 18 The Douglas cause, the most famous litgiation in 18th century Scotland, concerned the succession to the duke of Douglas following his death in 1761. The claimants were Archibald Stewart and the duke of Hamilton, both children. The House of Lords reversed the Court of Session’s decision, which had followed considerable investigation in Paris, the birthplace of Archibald Stewart, and ultimately found in the latter’s favour. See A. Francis Steuart, ed. The Douglas Cause (Edinburgh: Hodge, 1909). 19 Ibid., 162r.
for nought & then on his death rears up a charge for these services ag[ains]t his heir, It seems to me to be iniquitous & not to be incourag’d.20
Birdston had, nonetheless, been uplifting rents and, in the end, the matter was dealt with by arbitration.21 The second preoccupation with the Airth estate was the lawyers’ concern to ensure that their client live within his means. Knowing how precarious Graham’s finances were, Mackenzie was reluctant to launch into expensive lawsuits. Nor was William Graham to borrow further without first having paid off some of the existing debts on the estate. In practice, this meant selling part of the estate and also making new financial arrangements where possible to replace expensive debts with cheaper borrowing. Right from the start, Mackenzie made things clear to his client. Graham wanted to make a settlement in favour of his nephew but Mackenzie took the view that he ought to be thinking of getting married (which he did in 1760), rather than what might happen in the event he died childless.22 He later expressed this to Leckie by saying that their client should be more concerned with “how to free his estate by living greatly within his rents than how to test upon it.”23 On being ordered to remit money to Graham’s nephew in London, Mackenzie told his colleague that he had written to their client “more plain than pleasant” that a man was as easily destroyed by the neglect of his doers as the “infrugality” of his friends and relations, and that he would not allow the estate to be bled “for the sake of an agent fie which in such a case is (hush money) to any unattentive mans destruction.”24 In dealing with offers of loans and managing the finances of the estate, Mackenzie showed his experience. When in 1761 the chief baron of exchequer called for his annualrent (that is, the interest on a substantial loan), Mackenzie paid him from his own pocket as an advance to his client.25 This prevented so influential a creditor having to ask twice. On doing the same the following year, he explained to Graham that, if he had not made these payments quickly, the baron might have raised the interest rate, or called in the loan, and it would
20 nls, Airth papers, ms 10862 fol. 27r. 21 Ibid., fols. 32r, 35r, 40r. 22 nls, Airth papers, ms 10858, fol. 23r. In approving the draft marriage contract, Mackenzie oddly compared being a married man to the “as ancient & as honourable” status of being a freemason. 23 nls, Airth papers, ms 10862, fol. 169. 24 Ibid., fol. 33r. 25 nls, Airth papers, ms 10858 fol. 61r.
26 Ibid., 83r. 27 E.g. nls, Airth papers, ms 10862 fol. 45r. 28 Ibid, fol. 27. 29 Ibid., Airth papers, ms 10858 fol. 91r. 30 Ibid., fol. 89r. 31 Ibid., ms 10862, fol. 225. 32 Ibid., Airth papers, ms 10858, fols. 134v-135r. 33 Ibid., fol. 137r. 34 Ibid., ms 10863, fol. 48r.
In assessing the relationship between Mackenzie, Leckie and their client several conclusions may be drawn. First, Mackenzie wrote assiduously and was very conscientious; he is likely to have insisted that Leckie maintain an equally regular correspondence. The same attitude is found in other central court practitioners. The Edinburgh writer John Murray, for instance, made a point of writing to his client John McLaine of Lochbuie every Wednesday during the session and made it clear that he expected regular returns.35 McLaine, who lived near Oban, seems to have had no local agent and corresponded directly with his Edinburgh lawyer. John Syme ws stressed the need for information when he berated a corresponding agent that there was nothing he could do, in regard to “operations in the country”, unless the facts were distinctly explained to him.36 It was the Edinburgh agent’s task to formulate the plan of action, and he would take the blame if that went wrong, but “to make brick without straw is impossible” and he needed accurate information.37 Secondly, Mackenzie was respectful but assertive with both Leckie and Graham. He was sometimes willing to defer to Leckie. An illustration of this arose in 1754 in relation to a debt owed by an agricultural tenant.38 Mackenzie may have been the senior lawyer, but he was prepared to be led by Leckie’s opinion in an area of practice where his local colleague, as he put it, “from experience, can judge much better how to deall with the farming tribe.”39 He also took care to praise Leckie in 1757 for the clarity of presentation in his account for his services, stating that he might “not weary so much of the Branch of agenting” if he dealt with more men like him.40 Evidence of funds paid by Leckie as Graham’s factor appears in Mackenzie’s account book.41 While he did not shirk from plain dealing, he gave credit where it was due in respect of Leckie’s competence and his client’s rationality and humanity. His own sympathies are sometimes evident, although ultimately decisions were always a matter for the client, with the benefit of further advice from his friends and from Leckie. In one case Mackenzie could not find it within him- self to recommend civil imprisonment for one of Graham’s debtors who
35 nrs, Maclaine of Lochbuie papers, GD174/1273/2. 36 nrs, Papers of the family of Murray of Broughton, GD10/1421/6, no. 319. The correspon- dent was John Bushby, writer in Dumfries. On Syme, see nls Acc. 13218/3, fol. 38. 37 Ibid. 38 Ibid., fo 60r. 39 Ibid., fol. 225r. 40 nls, Airth papers, ms 10863 fol. 69r. On another occasion, he referred to Leckie’s accounts as being “satisfyingly distinct”: ibid., 17r. 41 E.g. nls, Delvine papers, ms 1195, fols. 166, 186.
suffered from gout and rheumatism. Using the bankruptcy legislation, he came up with an alternative.42 Mackenzie’s business-like attitude is also clear from the pains he took to clear accounts at reasonably regular intervals. Regular accounting allowed the client and his friends to see “whether the debts are on the growing or declining hand and according as one or other is the case we will be approved or condemned.”43 His attitude was not mercenary. He advanced funds for his client without insisting on early repayment, even in difficult economic circumstances. After Leckie’s death, when William Graham resolved to be his own factor, Mackenzie approved on the basis that a man should be “a Lion in his own cause.”44 William Graham, though not an outstanding scholar, had been edu- cated at Harrow under the supervision of the noted London solicitor, William Hamilton, and was capable of dealing intelligently with his own affairs.45 Mackenzie had come to know him well enough to offer the practical advice that he should not indulge his tenants. Showing leniency when payments were due, he advised, “is in the end an Injury not a favour done them.”46 Knowing the client, and developing a relationship over a period of time, was important. Experienced Edinburgh agents knew that only a thorough under- standing of the client’s finances, his family relationships, the titles in his char- ter chest and the potential threats to his well-being, allowed the best advice to be given. That is why it was useful, at the start of such a relationship, to inven- tory the client’s papers and ensure that they were properly indexed and that appropriate rentals were made up if necessary. It was also wise to try to avoid misunderstandings. Lawyers held any papers which they were working on, but they did not necessarily retain clients’ docu- ments for the longer term. Some certainly did but, for reasons of space and concerns about fire in the narrow and built-up town of Edinburgh (Ronald Crawfurd ws lost papers “of immense value” in a fire at his writing chamber in 1741), this was not generally the practice.47 John Murray, for instance, requested that his client send him all his papers so that he might “pick out such as can be of use in your processes the rest shall be put in better order than ever they
42 nls, Airth papers, ms 10863, fol. 31r. 43 Ibid., fol. 13r. 44 nls, Airth papers, ms 10858 fol. 9v. 45 Ibid., ms 10944, fols. 7v, 9r. 46 Ibid., ms 10858, fol. 9v. 47 nrs, Murray of Broughton papers, GD10/1421/9, fol. 400. See also Finlay, Community of the College of Justice, 54, 203–4.
Truly I neither have nor ever had a coppie of the said taillie [entail] and if you think that I keep a coppie of all papers I writt you are greatly mis- taken. It is now a long tyme since that paper was written and I have not the least vestige of a scroll concerning it.50
This blunt, and rather testy, style is not untypical of that adopted by some agents. While in many cases the correspondence between writers and clients makes polite enquiry concerning the wife and family of the addressee, and compliments and small favours are exchanged, the relationship was fundamen- tally a business one. It could also be potentially fragile and it did not necessarily take much for it to turn sour. Patrick McDouall of Crichen ws used an interest- ing phrase in 1734 in writing of his client, Alexander Murray of Broughton, saying that he had served him “as my particular friend and not as a common client.”51 The need to maintain a professional distance was recognised, if not always observed, as an important part of the agent-client relationship.
Employing Counsel
When it was necessary to employ advocates, clients sometimes had strong views about who should be employed. James Boswell, in one case, even received his instructions from beyond the grave: John Alexander of McKilston left testamentary instructions that £30 sterling be given to Boswell “that he may give advice to my heir”, with the heir in question expected to pay Boswell in future for further advice.52
48 nrs, Maclaine of Lochbuie papers, GD174/1273/1. 49 nrs, Sinclair, earls of Rosslyn, papers, GD164/425. 50 nrs, Papers of Professor R.K. Hannay, GD214/631. 51 nrs, Murray of Broughton papers, GD10/1421/2/124. 52 alsp, Arniston collection, vol. 142, no. 38, Memorial for Katherine Gerran, spouse of James McKie, Merchant in Stranrawer [sic]; and the said James McKie against John-Alexander Shaw of McKilston, merchant in St Johns Clachan, 19 Jan. 1781, p. 9.
Normally, of course, clients had autonomy in selecting which advocates were to act for them. While law agents would normally select counsel, there was no prohibition on direct access by clients to members of the bar. In one case, a group of heritors from Aberdeenshire, at a loss for whom to employ as a law agent to take their case forward, asked the advocate Francis Garden, who had acted for them in the past, to recommend someone as their doer.53 Garden nom- inated Henry Home ws, a man whose natural connections lay to the south, rather than the north-east. While, to a large degree, the business of many Edinburgh-based lawyers depended on clients drawn from their native counties, the most successful, like Home, eventually drew clients from everywhere.54 Prior history and local connection often dictated the choice of counsel. Take, for example, a postscript in a letter from Archibald Higgins, town clerk of Dunbar, to the town’s agent in Edinburgh, David Anderson, in 1750. Higgins had been instructed to seek a legal opinion on whether the inhabitants of Dunbar, under the town’s historic charters, continued to be exempt from the sheriff’s jurisdiction following the coming into force of the Abolition of Heritable Jurisdictions Act. The council thought the case so important, Higgins told Anderson, that “you will please take our friend Mr Thomas Hay’s opinion of it or any lawyer you think proper.”55 Hay belonged to the powerful family of the marquess of Tweeddale, based at Yester in East Lothian, and had a long- standing local connection to Dunbar. The urgency allowed Higgins to provide for some alternative, should Hay be unavailable, but by this was probably meant someone else connected to the town whom the council would view favourably. This was certainly the attitude often found elsewhere. In Dumfries, the town council favoured advocates with local connections, such as Andrew Crosbie and Robert Corbet (both sons of former provosts of Dumfries).56 In the smaller burgh of Newton, in Ayrshire, the council employed successively John Hunter and Thomas Grierson as Edinburgh agents while George Fergusson of Kilkerran (later Lord Hermand) was “the Town’s advocate.”57 Glasgow favoured the advo- cate Thomas Miller, son of the town’s agent at Edinburgh, while Dumbarton
53 alsp, Armiston collection, vol. 83, no. 4, The Petition of William Dingwall of Brucklay, 22 Feb. 1766. 54 Finlay, “Corruption, regionalism and legal practice,” 165–67. 55 nrs, Dunbar tcm, B18/41/8/6. 56 E.g. dac, Dumfries town council minutes, A2/19, 12 Jun. 1775; A2/20, 12 Nov. 1781; A/21, 14 Mar. 1785. The provost was the elected head of the town council. On burgh lawyers, see Chapter Nine. 57 sac, B6/27/2, fol. 85r. Hunter had Ayrshire antecedents; Grierson was from Kirkcudbright. Both were writers to the signet.
but I beg you order some person in Edinburgh or Glasgow to furnish the agent or advocates with money as they want it; for by sparing, and too much parsimony, I may lose a great deal. If Asknish will take upon him the management of the plea, I beg you fee him most generously; and, from time to time, let him know, that his friendship to me shall always be rewarded. I write him under this cover: and fee Asknish first; and if he will take the trouble of the affairs on him, let him chuse agent, and let every thing be done under his influence.
58 Finlay, Community of the College of Justice, 65–6. 59 nrs, Linlithgow tcm, B48/9/9, fols. 149, 227; B48/9/10, fol. 261, also later unpaginated entry dated 24 Mar. 1750; B48/9/13, fol. 252; B48/9/15, fols. 541–2. 60 alsp, Hamilton-Gordon collection, 1st collection, vol. 31, no. 2, Memorial for George Jack Portionar of Coultray, 22 Nov. 1739, p. 4. 61 gca, Records of the Maxwells of Pollok, T-PM/115/81. 62 alsp, Arniston Collection vol. 87, Answers for Neil Macneil of Bristol, merchant, and James Simson merchant in Glasgow, his attorney, to the Petition of Roger Hamilton-Macneil of Taynish, Esq., 21 Nov. 1767, p. 25.
Lord Lovat also had definite views on the employment of counsel. According to Hill Burton, for a Highland chief like Lovat, lawsuits had replaced the blood- feud as a form of hereditary warfare. A good number of active law-pleas was regarded as a badge of importance “nearly as effective as a strong body of clansmen.”63 Lovat personally identified the men he wanted. In 1716, he urged Duncan Forbes to recruit Sir Walter Pringle to assist him in defending his claim to the forfeited estate of Alexander Mackenzie of Fraserdale.64 In the end, Forbes argued the case against Sir Walter.65 In 1742, Lovat expressed surprise to his agent that Robert Craigie (opposite, Illustration 1) had not drawn a plead- ing for him, as though Craigie had been under some personal obligation to do so.66 Lovat had a high regard for Craigie’s talents, considering him in 1740 to be, aside from Charles Areskine, “the first man at the Bar.” As he remarked to William Fraser ws, Craigie “has been my lawier for many years and I always paid him liberally, but he that has him, has but an Eell by the Tail.”67 On another occasion, Lovat was angry when Fraser consulted his ordinary advocate, his cousin John McLeod, but not Charles Areskine.68 Personal con- nection to particular counsel weighed heavily with him and his annoyance is palpable:
I know my cousin, Mr John McLeod, to be a very able lawier, but at the same time I know that there is not a man at the bar nor that has been at it for many years that comes within sight of Mr Charles Erskin for draw- ing a paper and as he was always my lawier, my intimat comerad, friend
63 John Hill Burton, Lives of Simon Lord Lovat and Duncan Forbes, of Culloden (London: Chapman and Hall, 1847), 126; cf. Jenny Wormald, “Bloodfeud, kindred and government in early modern Scotland,” Past and Present 87 (1980): 54–97. 64 This is evident in his correspondence with Duncan Forbes after 1716 when he insisted on employing Sir Walter Pringle, e.g. [H.R. Duff, ed.], Culloden Papers (London: Printed for T. Cadell and W. Davies, 1815), 70–71. 65 E.g., alsp, Hamilton-Gordon collection, vol. 37, Information for Simon Lord Lovat against The Creditors of Alexander Mackenzie of Fraserdale, 18 Nov 1717 (per Duncan Forbes); Information for The Creditors of Fraserdale against the Donator of his Single and Liferent- Escheat, 5 Dec 1717 (per Walter Pringle). 66 Henry Paton, ed. Report on the Laing Manuscripts Preserved in the University of Edinburgh (2 vols, London: H.M.S.O., 1914), ii, 257. 67 nrs, Fraser papers, RH15/13/52, Lovat to Fraser, 2 Jul. 1740. 68 The William Fraser concerned is certainly William Fraser of Ford, ws: Paton, ed. Report on the Laing mss, ii, 296. This discounts two contemporaries of the same name, the Edin burgh writer and notary William Fraser and another ws, Fraser of Balnain, also known as William Fraser senior. A number of references rule out Balnain: ibid., 254, 288, 292.
Illustration 1 Robert Craigie (1685–1760), of Glendoick, advocate, lord advocate, and Lord President of the Court of Session. by allan ramsay. reproduced by permission of the scottish national portrait gallery.
and relation, it was certainly most unaccountable in you not to call him and have his assistance in such a criticall point. The saving two or three guineas in that way is doing me no manner of service. …69
If there was time, he instructed that Areskine receive a fee to revise McLeod’s answers before they were submitted to the judges and asked that Areskine “may support and assist Mr McLeod in pleading the cause.” As a clan chief, Lovat had an intimate knowledge of the bar and maintained regular correspondence with his “ordinary lawier” John McLeod.70 He also kept a close eye on any papers written under his lawyers’ hands that were submitted to the court.71 After Areskine was elevated to the bench as Lord Tinwald in 1744, Lovat wanted to employ Alexander Lockhart. He carefully cultivated his friend- ship with Areskine by also employing his son, James, who came to the bar in December 1743.72 In 1730 Lovat had expressed the hope to Areskine that their sons should be as great friends as they were and that “as long as I have justice on my side I make no doubt but my great friend [i.e. Areskine himself] will stand by me.”73 Indeed, when facing his final trial, charged before parliament with treason in January 1747, having been abandoned by many of his erstwhile friends, Lovat appealed to Tinwald from the Tower of London. Reminding him of their kinship, and their years of “intimate friendship”, he asked him to persuade his other son, Charles, to defend him. He was the “Glorious young Fellow…whom I expect to be the Hero of my cause and who perhaps may save my Grey head from the block.”74
69 Ibid., ii, 276–277. Cf., ibid., 297, for a more conciliatory view. For a paper drafted for Lovat by McLeod, The Petition of Simon Fraser of Lovat, 24 Nov 1743, Miscellaneous collection, ser. 17 (1742–9), no. 183. 70 On clan chiefs and litigation in the seventeenth century, see generally Douglas Watt, “Chiefs, lawyers and debt: a study of the relationship between Highland elites and the legal profession in Scotland c.1550 to 1700,” (PhD diss., University of Edinburgh, 1998). McLeod was a novice. He was 21 when he matriculated at Leiden in 1708 and he was admitted to the bar in 1710: Willem N. du Rieu, ed. Album studiosorum Academiae Lugduno Batavae mdlxxv–mdccclxxv (The Hague, Martinus Nijhoff, 1875), col. 808; nrs, Books of sederunt, cs 1/10 fol. 106v. His son, Alexander, admitted advocate in 1743, was also employed by Lovat. 71 E.g. Parton, ed. Report on the Laing mss, ii, 287, 302. 72 Ibid., 298, 300. 73 nls, Paul ms, ms 5156, fol. 93r. 74 nls, Erskine-Murray papers, ms 5076, fols. 3–4. For Charles, see page 81.
This was a desperate move because Charles was not the most experienced at the bar. In the end, he did not defend him, nor was he saved from the block. Lovat carefully and continually kept a tight grip on the selection of lawyers representing him; at times he was motivated by politics and kin-solidarity rather than expediency.75 He declared that he would insist on employing his cousin, Lord Drummore’s son (David Dalrymple), even “if he could not do me a halfpenies worth of service.”76 Employing the son of a judge never hurt and was thought to influence the bench.77 On another occasion, he wanted Charles Gordon employed because of his social rank (he was brother to the Countess of Cromarty) and because “they say my Lord Arnistoun takes notice of what he says.”78 He did not shirk at the expense of hiring counsel, asserting with pride that he had “never starved a cause” and was quite happy for his agent to “join to Mr McLeod two or three or four [counsel], if the cause require it in the least.”79 At the same time, he was a difficult client. A formidable figure in his own right, he was certainly not above trying to influence lords of session or even, as in the case of Lord Strichen in 1732, angrily threaten them.80 When it came to selecting advocates, the majority of clients were eager to be guided by an experienced agent. A good example is William Sinclair of Thurso who, in 1774, found himself threatened with prosecution for assault in Inverness.81 His agent, Samuel Mitchelson ws, immediately identified a line of strategy and proposed to retain the solicitor general, Henry Dundas, in a bid to prevent Sinclair being faced with a criminal indictment raised in the king’s name. Mitchelson knew that the lord advocate was in London and, if Dundas (who acted in the advocate’s stead) could be brought onside, an indictment might be avoided, leaving only a private prosecution that would increase the costs for the prosecutors. Mitchelson also advised Sinclair, should he be called upon to give a precognition, to engage John Rose, a local writer in Thurso, to act for him.82
75 E.g. Paton, ed. Report on Laing mss, ii, 295. 76 Ibid., 303; cf. 316. Drummore attended dinner with Lovat in May 1745, during the northern criminal circuit: ibid., 308. 77 Arniston was an influential judge. On judicial favourites, see Finlay, Community of the College of Justice, 18, 95. 78 nrs, Fraser papers, RH15/13/52, Lovat to Fraser, 16 Feb. 1740. 79 Ibid. 80 nls, Saltoun papers, 16551, fol. 135. 81 nrs, Papers of the Sinclair Family of Freswick, Caithness, GD136/417/9. 82 Ibid., GD136/417/6. Rose (and, later, his son) were notaries public: Finlay, ed. arnp, i, no. 1802; ii, no. 2257.
Along with Dundas, Mitchelson recommended Andrew Crosbie, whom he regarded as “the best criminal Lawier we have at present.”83 In the event, by the time Mitchelson received Sinclair’s instructions to retain them, both Dundas and Crosbie were otherwise engaged and unable to go to Inverness. Having insisted throughout that his client be defended separately from his co-accused, Mitchelson offered the following suggestions:
I hear Mr Boswall is to be in Edinburgh all this vacation so I suppose you may have him for your Counsel, Mr Rae and Mr McLaurin are also here & are very able in their way—I hear it will cost Thirty guineas to carry such a Lawier as Mr Boswell to Inverness £40 to any of the other two.84
William Nairne had already been engaged as advocate-depute for the prosecu- tion. In the end, the action was brought privately and although it had the con- currence of the lord advocate (through his clerk) this was traditionally given merely as a matter of course.85 Securing the right agent was therefore important and in this regard advice from a knowledgeable friend or patron rarely went amiss. The marquess of Lothian, for instance, wrote to Lord Milton in 1738 because he appreciated that “it is of consequence to have a right agent” and sought guidance.86 This was particularly important because he had a matter that would very soon appear before the Court of Teinds (of which Milton was a judge), and he sought Milton’s opinion as to “what agent may be most proper to employ in that affair.” When it came to the choice of counsel, agents had interests of their own to consider. In 1770 the town of Perth’s law agent, James Beveridge, was instructed to retain Henry Dundas and Andrew Crosbie for the town. He pleaded with the
83 On Crosbie, see Frank Miller, “Andrew Crosbie, advocate, a reputed original of Paulus Pleydell in ‘Guy Mannering’,” Transactions of the Dumfriesshire and Galloway Natural History & Antiquarian Society 7 (1921): 11–32. 84 nrs, Papers of the Sinclair Family of Freswick, Caithness, GD136/417/10. Contractions expanded. The advocates referred to are James Boswell of Auchinleck (the biographer of Samuel Johnson), David Rae (later Lord Eskgrove) and John McLaurin (later Lord Dreghorn). Boswell (adm. 1766) was much less experienced than Rae or McLaurin, admit- ted in 1751 and 1756 respectively. Inverness was one of the stops on the northern criminal circuit. 85 Ibid., GD136/417/9. On the lord advocate’s concurrence, see John Finlay, “Advocacy, patronage and character at the eighteenth-century Scots bar,” Tijdschrift voor Rechtsgeschiedenis 74 (2006): 97. The sum paid for it trifling; in one case, just over 12 shil- lings is recorded: nls, Delvine papers, ms 1194, fol. 15. 86 nls, Saltoun papers, ms 16574, fol. 146.
I wish it on my own account also. As the overlooking of a Lawyer is read- ily imputed more to the agent than to the client, and surely the magis- trates would not wish to place me in that disagreeable situation.87
The same position applied to Robert McQueen but, as he had been retained to act for the town’s opponent, Beveridge concluded that in his case “no offence will be taken.” Dundas and Crosbie had also been previously engaged (or, in the case of Dundas, at least consulted) by Perth, so Beveridge’s approach appears rather extravagant. However, it can be explained by the fact that Edinburgh agents tended to favour a small coterie of advocates with whom they formed effective working relationships. John Buchanan, the nineteenth-century Glasgow lawyer, recorded that the Edinburgh agent “has his own particular set of counsel regu- larly employed [and] does not roam over the Faculty, but keeps strictly to one or more advocates, unless in exceptional cases.”88 The “accompt book of pro- cesses” of John Mackenzie ws, in the period 1742–1749, noted the payment of fees to only thirteen advocates, representing his own favourites (Alexander Lockhart and Kenneth Mackenzie featured prominently) alongside some who were, no doubt, selected by his clients.89 Lockhart was generally popular with agents, according to Ramsay of Ochtertyre, because he was not “over-squeamish” in taking on cases.90 When time was short, particularly when distance was a factor, an agent might engage counsel and inform his client after the event that he had done so. In 1790 Duncan Campbell in Inveraray wrote to his client, Lachlan MacLean of Torloisk (in Mull), intimating that he had instructed his Edinburgh correspon- dent, John Campbell ws, “to retain Mr Solicitor Blair as one of your counsel.”91 As commissary of Argyll and an experienced local agent and fiscal, Campbell had no hesitation in suggesting the names of counsel without referring to his
87 pkca, B59/38/4/13, James Beveridge to Walter Miller, 4. Jun, 1770. 88 [Buchanan], Reminiscences, 29. 89 nls, Delvine papers, ms 1194. 90 John Ramsay, Scotland and Scotsmen in the Eighteenth Century, ed. David J. Brown (2 vols, Edinburgh: Thoemmes Press, 1996), i, 133. Ramsay’s text was originally published in 1888. On Lockhart’s reputation, see also Finlay, Community of the College of Justice, 144–5. 91 nrs, Letterbooks of Duncan Campbell, GD1/205/6, ii, fol. 64 (9 Apr. 1790). For Campbell, see Finlay, arnp, i, no. 1688.
I approve much of your advising Eminent Council in her support and if not otherwise pre engaged would suggest either the Advocate, Solicitor General, Mr Adam Rolland, or Mr Mathew Ross or any two of them if necessary….92
A restraining factor on who might be employed was the rule, arising from the obligation of confidentiality, that a lawyer who had been consulted by one party could not thereafter act for the other.93 Lord Lovat went so far as to refuse to ask John McLeod to appear in a case in which McLeod’s son, Alexander, had been retained to act for the other party, although this was not in fact a proper application of the rule.94 An illustration of the confidentiality rule in practice from 1779 sheds light on relations at the bar. The wealthy banker Sir William Forbes, out of concern for a friend who was subject to a private prosecution, showed his friend’s precog- nition (on the basis of which the lord advocate had refused to prosecute at his own instance) to the advocate Robert Blair. This discussion with a friend of the accused was enough for Blair subsequently to refuse an approach from the prosecutor to act for him. Another friend of Forbes, the advocate William Nairne, then advised him to employ Blair for the defence.95 A highly unusual example occurred in 1715 when the advocate John Mackenzie was asked by one of his neighbours not to appear against him in an action being brought by another local man. He was told that his colleague at the bar, Simon Mackenzie, had already agreed to refrain from acting.96 Like any advo- cate facing a direct approach from a litigant, Mackenzie was free simply to rebuff him and “remain at Liberty to take which side he liked best.”97 This was precisely what William Grant did in 1747 when approached by Archibald
92 Ibid., fol. 128. Punctuation added. 93 Discussed in Finlay, “Advocacy, patronage and character,” esp. 97–102. This differs from pre-engagement by a client which had nothing necessarily to do with confidentiality but with the rule that prior retention took precedence, see infra. These rules had the same result because an advocate who had been consulted was, in effect, pre-engaged and unable to act for the other party. 94 Paton, ed. Report on Laing mss, ii, 294. 95 nls, Acc 4796/2. 96 nls, Mackenzie of Delvine papers, ms 1103, fol. 163. 97 nls, Saltoun papers, ms 16641, fol. 206.
Campbell ws to act for a client in a House of Lords’ appeal.98 Grant (lord advo- cate at the time), having already been approached by the other side, decided he would not engage for either party until he saw the shape of the case in London. When he got there, having spoken to the appellant first, despite having made him no promise, he felt obliged to provide some justification before acting for the respondent.99
Agents and Advocates
There is abundant evidence to illustrate the division of responsibility between agents, who managed actions, and advocates, who provided opinions advising on points of law, drafted pleadings and argued before the lords of session. It was normally the agent who drafted a memorial in response to which the advocate would provide a legal opinion or perhaps draft a bill or answers.100 A deposition by the Glasgow writer, William Somerville, reveals that in March 1742 he had drawn a memorial for his client, William Christie, deacon of the shoemakers, which they both took to the house of a local Glasgow vintner in order to present it to the advocate Charles Maitland.101 This must have been Somerville’s regular place of business, because another of his clients called for him there while he was engaged with Christie. Taverns and coffeehouses were regular haunts for lawyers in Glasgow, Edinburgh and Aberdeen.102 Despite these being public houses, nothing was thought “more ordinary” than to go there to discuss business in a private room, away from prying servants.103 In a case in 1738 it was mentioned that a
98 Ibid. 99 nls, Saltoun papers, ms 16646, fol. 150. 100 The word “memorial” has several meanings and might simply refer to what is no more than a note or memorandum. In the present context, it could either describe a paper containing a legal argument drafted by counsel (and, in this sense it is a synonym for an “Information” for the court) or refer to a case stated for the opinion of counsel. The latter would normally end with the word “quaeritur” followed by one or more precise (and usually numbered) queries or simply end with the question “quid iuris?”. 101 State of the process Thomas Dunsmore Merchant in Glasgow, and Robert Finlay Tanner there, Chargers; against William Christie Deacon of the Incorporation of Shoe-makers there, Suspender, 17 Jan. 1745, Falconer collection, vol. 1, no. 217. 102 The Regality Club, (3rd ser., Glasgow: James MAclehose & Sons, 1899), iii, 83; Finlay, “Lower branch of the legal profession,” 52. 103 alsp, Arniston collection, vol. 4, no. 37, Answers for Sir Alexander Anstruther, To the Petition given in by Hugh Wallace, 10 Jul. 1712, p. 2.
Had I thought that my writing the Memorial would have done any good I would readily have done it. But the task more properly belongs to you besides your being upon the spot makes it easier for you to do it and as I think you are very capable for the task it would be an injury to your parts to take it off your hand.
Memorials were generally quite short. Framing an opinion in response to them, however, could take time and might require counsel to examine charters and other evidence. It is rare to find counsel unable or unwilling to provide an opinion. This was something perhaps more likely to happen with an advocate employed as asses- sor to a town council who might be asked a question that was simply beyond his experience or which was perhaps so important that the client needed to
104 alsp, Hamilton-Gordon collection, vol. 57, Copy of the proof adduced in the Process at the Instance of James Wright against John Din, 1 June 1738, p. 1. 105 nls, Delvine papers, John Mackenzie ws accompt book, ms 1194, fol. 43; see fol. 25. 106 alsp, Arniston collection, vol. 50, Account of expences depursed by William Robertson in process against John Gibson of Durie, 21 July 1760; See nls, Delvine papers, ms 1194. 107 sba, D/47/70/23.
Baillie Andrew reported that he laid before Mr Dundas of Philpstoun the touns lawyer that memorial with respect to the affair appointed by Law for ministers relicts and that Mr Dundas was of opinion that the Toun should consult on that score a first rate Lawyer on that subject to which the council did agree and ordain Baillie Wauch to go to Edinburgh and attend the consultation.108
Given the ability of the judges in the Court of Session to disagree upon points of law, there was much scope for counsel to disagree in their opinions. In some cases, through lack of knowledge or time, lawyers occasionally offered opin- ions that were wildly inaccurate. The writer James Gilkie asserted that the opinions of even the most eminent counsel “avail nothing” and that judgments were “like a leap in the dark, and as precarious as a dice-box.”109 From the perspective of the client, the opinion of a trusted lawyer was all. When an important purchase of land was in prospect in 1749, the agent for the family of Murray of Broughton drafted a memorial and went over the entire progress of writs with the advocate Alexander Lockhart in order to get his opinion. When it was apparent that Lockhart had not endorsed the dis- position to indicate that he had approved of it, the client in Edinburgh received a letter from his mother telling him to ensure “Mr Lockhart had seen & considered the progress of writes relating to that purchase and was satisfied with them.”110 Once written, the lawyer or lawyers responsible for it would sign a legal opinion and a copy would be transmitted for the client’s consideration. Some Edinburgh agents, such as Adam Mercer, were very particular about keeping their clients informed. When he was agent for the earl of Airlie, Mercer worked with at least four counsel—James Graham, Alexander Hay, John Ogilvie and George Douglas—and took care to ensure that Airlie was kept informed of his lawyers’ answers and legal opinions: a complicated business when there were so many of them.
108 nrs, Linlithgow tcm, B48/9/9, fol. 227. 109 William Roughead, “The wandering jurist; or, Boswell’s queer client,” Juridical Review 43 (1931): 34–5. 110 nrs, Murray of Broughton papers, GD10/1421/5, fol. 270.
The Case of James Din
Eighteenth-century litigation could be lengthy, complex and frustrating for the parties involved. Practical difficulties might emerge at any stage to influence the advice lawyers gave their clients and it is useful to look briefly at one case to illustrate how things might change in the heat of battle. The rich correspondence of the duke of Montrose reveals the background to the case of Din v Din which, initially, the duke’s lawyers regarded as a straight- forward matter. When it was advocated from the regality court of Lennox to Edinburgh in June 1717, the duke’s Edinburgh agent George Robertson declared that he had “no fear” about it.111 By the end of July, complexities had arisen and Din’s lawyers had already complained of irregular procedure by Lord Pollok, the lord ordinary.112 In January 1718, a narrow majority in the court repelled Din’s bill of advoca- tion. A single vote made the difference. While Din and his lawyer were deter- mined to reclaim, Robertson remained optimistic.113 Two years into the process, he sang a different tune, confessing that he thought the affair was occasioning “a plaguey expence” and complaining that “the Lords contrive interloquitors on purpose to occasion expence.”114 He might have had in mind a bill Din put forward in July 1719 which the judges accepted at the “very last Minutt of the Session”, even though he had been assured by the duke’s advocate, James Graham of Airth, that the bill was inconsequential.115 Entering bills in the last days of a session of the court was a common delaying tactic. Also typical was the thought, later expressed by Robertson, that the process was “of greater expence than the value of the subject in controversie.”116 But this was still only the beginning. As late as 1725, the matter went to arbitration and there is no indication whether it was ever satisfactorily resolved. The subject matter of the dispute is not entirely clear from the correspon- dence. It began as a complaint brought by James Din against the colourful bai- lie of the regality of Lennox, James Graham of Kilmannan (who, during the proceedings, threatened to shoot the dean of the Faculty of Advocates, for what he said about him when pleading).117 Kilmannan had poinded his goods
111 nrs, Montrose Correspondence, GD220/5/1721/7. 112 Ibid., GD220/5/1935/2. 113 Ibid., GD220/5/1722/2a. 114 Ibid., GD220/5/1729/1. 115 Ibid., GD220/5/1724/9. 116 Ibid., GD220/5/1729/9. 117 alsp, Petition and Complaint of the Faculty of Advocates, 12 Jul. 1728, Miscellaneous collec- tion, ser. 17, vol. (1727–8), no. 107, p. 1.
a very nice point of law, which puzzled the Lords and as to which they determined once by ane interloquitor to sustain the order of redemption, yet therafter they came to vary, and demurr upon it, and have since in other cases determined the quitt contrary.120
Cases in the Court of Session regularly ended up costing more than their intrinsic value and this is one of them.121 Notable is the way in which the Edinburgh lawyers found it so difficult to foresee how things might develop. George Robertson was sure the matter would soon be ended. James Graham was certain that James Din’s latent lease could not defeat the duke’s tenant. But the client had only recently purchased the lands in dispute and the relevant information about them gradually emerged in a piecemeal fashion. What appeared simple, even to experienced lawyers, in fact turned into a matter that the court, after years of litigation, was ultimately unable to resolve.
Consultations
The Din case involved a mixture of correspondence and personal engagement in Edinburgh and Glasgow amongst the lawyers. While advocates might com- monly have a consulting room in their lodgings, a consultation with a client or his agent could take place anywhere in the country, on any day of the week and
118 nrs, Montrose correspondence, GD220/5/1725/12b. The memorandum was drafted by Montrose’s factor, Mungo Graeme of Gorthy; only the opinion was drafted by Airth. 119 Ibid., GD220/5/1729/6-7. 120 Ibid., GD220/5/1734/11. 121 E.g. alsp, Arniston Collection, vol. 80, Answers for James Brands, Merchant in Aberdeen, Charger; to the Petition of Patrick Souper, Merchant in Aberdeen, Suspender, 21 Feb. 1760, p. 2.
122 For Johnson’s view of giving legal consultations on a Sunday, see James Boswell, The Life of Samuel Johnson, ed. David Womersley (London: Penguin, 2008), 463 (12 May, 1775). 123 E.g. Broughton of Cally papers, GD10/852, Accounts, 13 Nov. 1708. 124 alsp, Hermand collection, vol 83, no. 1, Information for Mess. Jones Havard and Jones and ors, Against William Johnston Writer to the Signet, 17 Feb. 1784, p. 15. 125 Ibid., Answers for Ilay Campbell, Esq; his Majesty’s Advocate, for his Majesty’s Interest, to the Petition of Mr David Armstrong, Advocate, 11 Jul. 1786, p. 13. Armstrong’s career came to an abrupt end due to bankruptcy and allegations that he had assisted a client in defrauding his creditors. See Finlay, “Corruption, regionalism and legal practice.” 126 Nan Wilson, “The sociology of a profession: The Faculty of Advocates” (PhD diss., University of Edinburgh, 1965), 226–7. 127 nrs, Murray of Broughton papers, GD10/1421/1/47. 128 nrs, Kennedy, earls of Cassillis, papers, GD25/8/1268. On Pitfour, see James Ferguson, “An old Scots judge,” Juridical Review 26 (1914): 282–298. 129 E.g. nrs, Montrose correspondence, GD220/5/1722/2a, 1734/5.
of opinion that there was no danger in the present case, & the geting [sic] the general point determin’d in this process would much depend
130 pkca, B59/38/4/5, James Beveridge to Walter Miller, 29 Mar. 1771. 131 Boswell’s journals demonstrate that informal discussions about cases between advocates often took place: e.g. Hugh M. Milne, ed. Boswell’s Edinburgh Journals, 1767–1786 (Edinburgh: Mercat Press, 2003), 134, 214–5, 313. Boswell arrived at one meeting with the lord advocate to find him drunk: ibid., 285. 132 Erskine of Dun, Friendly and Familiar Advices, 29. See further below, page 179. 133 nrs, Records of the General Assembly of the Church of Scotland, CH1/5/100, unpagi- nated, entries dated 26 Mar. 1806, 23 Apr. 1806.
upon the view the Lords took it up in, & they would insist or not accordingly….134
The client need not be personally present to clarify the facts. Lord Milton’s agent, John Watson ws, took a letter that Milton had written to the duke of Argyll to a conference with the advocate James Ferguson. According to Watson, having shown Ferguson a portion of the letter “he had recourse to the Civil law, and then I sat down, he dictated, and I wrote the case queries & Answers of new”, a document he then sent to Milton.135 A consultation was intended to prepare the ground and clarify the key elements of litigation strategy by identifying the points to be insisted upon when debating the case before the judges, whilst retaining as much flexibil- ity of argument as possible. This is what John Buchanan meant when he referred to the “intellectual treat” of being present at a consultation with counsel and hearing their views on the weak as well as the strong points of a case.136 Given the strategic importance of the consultation, there was an extensive legal debate in 1768 when the question arose of whether someone present at one could subsequently be admitted to give evidence for the opposing side. The occasion of this was a complex action relating to alleged bribery and cor- ruption at the preceding Michaelmas election of Jedburgh council, said to have been fixed by the earl of Lauderdale in order to secure the burgh for the next general election. Alexander Ainslie, a writer and one of the magistrates at the time of the supposed corrupt transaction with Lauderdale, was nominally one of the respondents but, it was alleged, he was politically in the same camp as the complainers. A lengthy proof and debate was held over whether he could be a competent witness. Relevant here is the argument put forward by John McLaurin for the councillors who were the respondents. Ainslie could not be a competent witness again them
because he had given partial council [counsel] in the cause in the stron- gest manner that can well be figured; for Mr Ainslie advised and con- certed this complaint, was present at consultations and conferences with lawyers, and other friends and agents for the complainers, and settled
134 pkca, B59/38/6/79/7. James Graham ws to George Miller, 23 Nov. 1743. Graham and Craigie both had close links to Perth. 135 nls, Saltoun papers, ms 16672, fol. 158. 136 [Buchanan], Reminiscences, 29.
with them what persons should lend their name to the complaint and what persons should be examined as witnesses.137
The proof lasted for more than two days and the commissioner hearing it took evidence from Robert Blair, counsel for the complainers, although this was restricted to “any fact which does not tend to disclose the secrets of his client.”138 It did, however, establish Ainslie’s presence at consultations both in his own house and at the house of the innkeeper, Robert Oliver, one of the complainers. The commissioner decided to allow Ainslie as a witness cum nota (that is, reserving to the lords of session to determine what weight, if any, his deposition should be given). This went against the general grain of authority which was to render anyone present at a consultation an inhabile (incompe- tent) witness.139 Consultations were useful exercises for lawyers both in terms of case prepa- ration and income. James Boswell of Auchinleck found that the prospect of a fee on such occasions helped fix his concentration.140 His own father, as a young man at the bar, had been permitted “for his own Instruction” to attend consul- tations given by Boswell’s grandfather.141 To hear lawyers discuss and debate the evidence prepared by the agent would have been a very useful form of learning. For an agent, preparing a case for a consultation might involve a great deal of searching in the public records and in private charter chests, along with the excerpting and copying of documents. In one case, James Spence narrated all he had done for his clients, the Incorporations of Leith. Not only did he look through all the records of parliament and the privy council going back to 1482,
137 alsp, Dreghorn collection, vol. 30, no. 22, Proof adduced for the Complainers in the Petition and Complaint of James Alexander one of the present counsellors of Jedburgh and others, 18 Jan. 1768, p. 5. See James Dalrymple, Viscount Stair, Institutions of the Law of Scotland (1681, 2nd ed., 1693), iv.43.9, who indicates that presence at consultations with lawyers “where it might be shown what was necessary to be proven” was one means for a witness to become inhabile by giving partial counsel. 138 Petition and Complaint of James Alexander, Proof, p. 8. 139 See Drummellier [sic] v Tweeddale in Sir John Nisbet, Some Doubts & Questions, in the Law; especially of Scotland (Edinburgh: Printed by George Mosman, 1698), 215 (dec. 441). There is discussion in alsp, Miscellaneous collection, volume 17, no 191, The Petition of John Din, Writer in Edinburgh, 16 Nov. 1749. 140 Milne, ed. Boswell’s Edinburgh Journals, 279. 141 alsp, Falconer collection, vol. 1, no. 191, Memorial and Observes for Captain John Chalmer of Gadgirth upon the Answers of James Porter and Robert Alison to the Captain’s Additional- Petition, 12 June 1745, p. 3.
pursuant to the Directions I had at the Consultation, I made ready all the Writs necessary to discuss this Appeal, and delivered them all with an Inventary [sic] to Mr. William Grant to carry along with him to London.142
As well as being lengthy, consultations might occasion a frank exchange of views. The writer Hugh Graeme informed Mungo Graeme in 1748 that he had spent three hours with the duke of Montrose’s lawyers. They were angry because they had not been shown the duke’s original documents of title and perceived this as a slight: “if you cant trust the lawiers you should not imploy them was their own words.”143 That case was of some importance and three advocates were present. According to one of the regulations in the Court of Session enacted in 1695, “there shall not be above three advocates called to the consulting the drawing of the information, after dispute, to the Lords.”144 Significantly, no limit was imposed on the number of advocates who could be consulted prior to the mat- ter being debated. This regulation also limited advocates’ fees according to the status of the client: a nobleman could give no more than two guineas; a baron, one and a half guineas, and any other gentleman, not more than one guinea. A further regulation defined penalties for any client who paid or promised more than this to counsel and it was ordered that both regulations be read to the advo- cates en masse at the beginning of the session.145 This regulation was based on regulations of 1672 and both, in practice, were generally ignored. In a 1739 pleading, James Ferguson acknowledged that “the Custom has in many Instances, particularly in the Honoraries given to Lawiers, deborded from the
142 alsp, Hamilton-Gordon collection, 1st coll., vol. 35, no. 32, Answers for James Spence Writer in Edinburgh To the Petition of the Trades of Leith, and Hector Shiels their Conveener, 3 Jun. 1736, p. 6. 143 nrs, Montrose correspondence, GD220/5/1663. 144 The Acts of Sederunt of the Lords of Council and Session, from the 15th of January 1553, to the 11th of July 1790. Published with the Authority of the Court, (Edinburgh: Printed by Neill and, for Elphingston Balfour, 1790), 215 (regs 29 and 30). See also rps, 1672/6/50, Act anent the regulation of the judicatories, s. 27. 145 nrs, Court of Session, books of sederunt, CS1/9, fol. 105r–109r.
Regulations.”146 Opposing counsel, Henry Home, formulated the question for the judges as being simply whether the litigant could be presumed to have laid out his expense “wantonly and extravagantly, or if he did it bona fide, as appear’d best to him for the Time?”147 A client with sufficient resources might involve half a dozen lawyers, either at a single consultation or cumulatively during the long course of a legal action.148 Lawsuits, after all, were a collaborative effort not only between the client, the agent and the advocate, but often between several advocates who might be engaged, perhaps at different times during the action, for the same party. Some advocates, such as Robert Craigie, Ferguson of Pitfour and later Robert McQueen of Braxfield, specialised as “chamber counsel”, trusted by the profession to provide sound and authoritative legal opinions.149 This had three aspects. First, an advocate was sometimes specifically asked to read a memorial prepared by a colleague at the bar and to revise it. This was envisaged in the regulations which provided that the advocate who drafted an information after a debate was to receive the full fee and his two colleagues only half of the fee for doing so. An account of expenses prepared in 1752 pro- vides an example and gives further evidence that, while some clients were will- ing to leave consultations to the discretion of their agent, some instructed particular advocates to be consulted. In the case concerned, the agent initially consulted Henry Home in December 1751 but, after Home was elevated to the bench, the case was handed on the following year to Alexander Lockhart (although in the same year Robert Dick was also consulted).150 In January 1753, on the client’s orders, Robert Dundas was consulted and asked to draw a lengthy petition. At that stage, Robert McQueen was then instructed, presum- ably for his opinion of the petition. In July 1755 Lockhart wrote a reclaiming petition and, again on the client’s direction, Robert Craigie was consulted pre- sumably to revise it. At the end of the process the last consultation, with Lockhart and Craigie, was in November 1755. In terms of strategy, McQueen and Craigie seem to have been brought in to examine the draft pleadings and ensure that no arguments were missed.
146 alsp, Hamilton-Gordon collection, vol. 9, no. 10, The Petition of Thomas Eliot Writer in Edinburgh, 21 Feb. 1739, p. 1. 147 Ibid., Answers for Archibald Cockburn Merchant in Edinburgh, 6 Jul. 1739, p. 1. 148 That is not to say that he would recover his costs for doing so. Such extravagance would probably not be countenanced by the court. See page 93 below. 149 Ramsay of Ochtertyre, Scotland and Scotsmen, i, 136. 150 alsp, Arniston Collection, vol. 41, no. 3, Answers for Joseph Allan Portioner of Little-Govan, 14 June 1757, pp. 20–21.
This was a common practice. In another case, William Miller was instructed to plead the cause and to draw the condescendence, but David Rae was also consulted and Robert Dundas was asked to revise and correct the petition.151 This pre-supposes the second aspect of collaboration which was specialisa- tion. Appeals to London in which a Scottish advocate and an English barrister were teamed together present an obvious example. While the former would concentrate on points of Scots law and procedure, the latter would focus on turning the information provided into a convincing case to be argued before the House of Lords. Thus in an appeal in 1733 a case first drawn by the barrister William Hamilton was revised by Robert Dundas and then given to William Murray “to be turned into proper language” i.e. to be made suitable for presen- tation to the Lords.152 The process of drafting and revising in domestic cases involved a similar exercise and this explains why it was common for opinions to be subscribed by two or more advocates.153 Finally, there is the question of cost. It was expensive to retain a first-rate lawyer to perform work that might be done by someone more junior. Besides, the structure at the bar was such that a relatively small group of advocates were involved in pleading a high proportion of cases. This left the busiest men without time to waste on routine matters that an assistant might execute. A good example is James Ferguson of Pitfour, one of the lawyers active in the service of clients with Jacobite sympathies. As William Fraser ws advised his client in 1759, Ferguson was so busy that he should never be retained on his own “for a man of his throng must have an assistant and it is so in all cases that he is concerned.”154 Fraser had two reasons for employing David Dalrymple alongside Ferguson:
first that Mr Ferguson is never alone imployed because neither his time or his station at the bar will {not} admit of his attending all the callings of a cause in the Outer house…which makes it necessary to have a young lawyer joined with him; secondly out of frugality because if Mr Ferguson
151 alsp, Miscellaneous collection, ser. 7 (1782–85), The Petition of George Bean, Writer in Inverness, 20 Jul. 1784. This was the son of the Robert Dundas consulted in 1753 in the previous case. 152 nls, Saltoun papers, ms 16553, fol. 119. It is worth pointing out that written pleadings in Scotland were written in English, although the language used in court was colloquial Scots. 153 E.g. nrs, Rose of Montcoffer (Kinharrachie) Papers, GD36/382/1. 154 nrs, Campbell of Dunstaffnage papers, GD202/68/15.
was to attend at the pleadings and callings that happened in your severall claims, it must have cost you double the sum you now pay.155
The number of opinions sought on behalf of a client varied. In criminal matters especially a fairly high number of advocates might be consulted. The writer Harry Dow’s accounts indicate that in a criminal action in 1697 no less than seven advo- cates were consulted, although only three actually appeared in court.156 This included a consultation with the client while he was a prisoner in the Tolbooth. This, necessarily, was a regular feature of agents’ accounts in criminal cases.157 The fees paid, ten dollars (£29 Scots) for a consultation and two dollars to the advocate’s clerk, are similar in proportion to the payment later made to clerks for a two-guinea consultation with their masters.158 In an action for aliment (spousal support), before the commissary court of Edinburgh in the winter session of 1746, the wife’s uncle and former guardian, Sir Walter Montgomery, consulted five advocates in his house in the presence of his agent, David Spens ws.159 The two points in issue related to the tocher (dowry) that had been paid and whether Sir Walter had standing to raise an action of divorce, on his niece’s behalf, without her concurrence. Along with Spens, one of the lawyers, the lord advocate, William Grant, accompanied their client to his niece’s room in a renewed bid to persuade her to allow her name to be used in a divorce action. Sir Walter was clearly keen to recover the tocher he had paid and his lawyers were not above helping him reduce his niece to tears. Clients in related actions might retain their own agents but come together in order to obtain a legal opinion from counsel. In 1766, for example, it was argued that when a minister sought to have his stipend increased, all those heritors bound to make a contribution to it, while acting separately through
155 Ibid., GD202/68/10 (see also GD202/68/16). Punctuation added. The word “not” was added to the text, although the sense is better were it elided, hence the brackets. Dalrymple was probably Dalrymple of Hailes (admitted to the bar in 1748); Ferguson had been at the bar since 1722. 156 nls, Papers in the claims of Agnes Murray Kynnynmound against her mother 1742–6, ms 13281 fol. 77v. Seven counsel were also feed in a criminal case in 1727: nls, Saltoun papers, ms 17539, fol. 18. 157 E.g. nls, Acc. 11137/12. A private room was set aside for interviews. See, e.g., Regulations of the Gaol of the City of Glasgow (Glasgow, 1817), p. 11, reg. 24. A copy of this pamphlet may be found in gul, Spec. Coll., Mu16-h.27. 158 According to this account, 2 guineas in 1697 equated to £29 16 s Scots. 159 alsp, Pitfour collection, vol. 6, no. 13, Copy of the Process of Separation and Aliment, before the Commissaries of Edinburgh at the Instance of Mrs Anne Motgomery against George Montgomery-Moir of Leckie, her Husband, 1749, pp. 30–31.
This much I assure you of, I mind consultations very little; they are but a farce among us almost as much as among the doctors; tho Clients think otherwise, & often are eager to attend them, which is idle. Lawyers do their business by themselves, & I cannot say I ever received very much instruction at these meetings. You speak of notes or minutes of what past; I never minuted a sylable in my life on such occasions….163
Lord Hailes, when giving evidence on oath in 1767, similarly had nothing to rely on but his memory of events at a meeting in the consulting room in his house three years before.164 The personal presence of a client at a consultation is likely to have had an impact, for good or ill, on how smoothly it was conducted. On a positive note, it might occasion instantaneous payment. Matthew Sharp of Hoddam recalled paying two guineas “of consultation money” to Andrew McDouall on one such occasion, and half a guinea to his servant, when prompted by his agent.165 During the hurry of the session, advocates did not always have time for con- sultations. In such cases, the agents proceeded by themselves: not every Session
160 alsp, Arniston collection, vol. 83, no. 4, Answers for Mrs Ann Garden, etc., 10 Apr. 1766, p. 5. 161 E.g. aa, Ayr town council minutes, B16/18/14, fol. 129. 162 gua, 26634, “Faculty Minutes 1720–1727,” fol. 195. The reference to a consultation might mean a discharge (or receipt) from the advocate in respect of payment. Miller was ordered to keep such receipts in 1722: ibid., fols. 16, 55. 163 nrs, Miscellaneous papers, RH15/44/2. 164 alsp, Dreghorn collection, vol. 29, no. 2, Case for Hugh Cairncross, mason in Galashiels pursuer against William Heatley smith in Newton and ors, 24 Apr. 1767, p. 38. 165 nls, Acc 13218/4, fol. 30.
Paper was drawn or even subscribed by an advocate.166 There are several exam- ples where the name printed at the bottom is that of an agent or even a litigant. An advocate’s clerk might also draw (or draft) a petition for his master as might another advocate (some specialised in this very task). In an account submitted by Patrick McDouall ws in 1720 there is a note stating that the advocate Andrew Mcdouall’s servant had been given £3 “for writing a long answer to a representation.”167 In 1736 George Richardson, acting as agent for the town of Perth, asked Laurence Craigie to draft a set of answers to a petition but Craigie, “being very throng asked me to draw them my self.”168 This he duly did, sparing his client the consultation fee. When a proof was held much of the drafting of interrogatories would also be left to the agent, subject to revision by counsel. William Fraser jun. ws appears to have drafted the questions to be put to the crown witnesses against his client, John Cameron of Fassifern, in July 1755.169 He charged slightly more for drafting the interrogatories to be put to Cameron’s own witnesses, no doubt a longer document, which Alexander Lockhart revised. Lockhart, one of four counsel employed in the case, received three guineas for his trouble.
Ending the Relationship
Lawyers down the ages have learned that the best method of breaking bad news to a client, particularly an important one, is to turn it into good news. This is what Adam Mercer and James Graham contrived to do after a disap- pointing result for their client, the earl of Airlie, in a decreet arbitral pro- nounced in 1730.170 Mercer described how fiercely counsel debated the cause when the proof was read before the arbiters. The latter had then refused to reveal the amount awarded against Airlie (it was £1000 Scots) until the decreet was signed by the agents for both parties, going so far as to cover up the sum specified in the decreet (in other words, Mercer was not to be blamed for signing it). He then indicated how disappointed the other side was not to be awarded the larger sum of £200 sterling for which they had hoped; and he followed that by reporting the opinion of James Graham, Airlie’s advocate, that
166 Finlay, Community of the College of Justice, 135–6. 167 nrs, Broughton of Cally muniments, GD10/852, “Accompt of the laird of Broughton to Patrick McDouall of Crichan Writer to the Signet,” 30 Dec. 1719. 168 pkca, B59/38/2/144/6, George Richardson to George Miller, 5 Mar. 1736. 169 nls, Acc. 11137/12. 170 nrs, Papers of the earls of Airlie, GD16/41/912.
171 On clearances, see page 114. 172 On the hypothec, see page 115. 173 gca, Records of the Maxwells of Pollok, t-pm 115/120. 174 Ibid., 115/77. 175 Ibid., 115/127-8. There were two notaries called Robert Alison jr: see Finlay, ed. arnp, i, nos 997, 1080.
to massacre my Reputation, both in the judicial Procedures had before the Court, and also as the ordinary Topick of Conversation, as if he thereby meant to warn all his Acquaintances to shun me, like the Snake whom he had cherished to destroy himself.177
Lockhart had accused him of taking papers from the Carnwath charter chest and giving them to an adversary in a legal action. No law agent could afford to ignore such an incendiary accusation. Given the pressures of time, the demands of clients and, for Edinburgh lawyers at least, the proximity of living and working conditions in the vicinity of the Court of Session, relations between lawyers and clients, and also between lawyers and lawyers, did sometimes over-heat. Fountainhall mentions an interesting case from 1703 involving a complaint by the Edinburgh writer James Leslie that Patrick Comrie had beaten him about the face.178 Comrie was factor to Leslie’s client, Campbell of Lawers, and their working relation- ship had clearly broken down. Unfortunately for him, Comrie had chosen to carry out this beating in the College precincts, in the presence of a number of advocates, while the lords were sitting. These aggravating circumstances made it, at least technically, a capital crime.179 While the lords of session certainly had the criminal jurisdiction
176 Paton, ed. Report on the Laing mss, ii, 287-8, 317, 319. He accused McFarlane of neglect and Brodie of robbing his charter chest (see also Hill Burton, Lives of Simon Lord Lovat and Duncan Forbes, 129–30). He had failed to follow the advice of President Forbes not to take two agents, since “one will betray the other and ruin your affairs.” Brodie, in particular, was jealous of Lovat’s ordinary doer, William Forbes, and held sway over McFarlane though the latter was senior to him. 177 alsp, Hamilton-Gordon, 1st collection, vol. 36, no. 22, The Petition of James Ogston Writer in Edinburgh, 19 Nov. 1742; Elchies Collection, vol. 14, no. 53, James Ogston Writer in Edinburgh against George Lockhart of Carnwath, 7 Dec. 1742. 178 Fountainhall, Decisions of the Lords of Council and Session From June 6th, 1678, to July 30th, 1712, vol. 1, 203. 179 rps, 1593/4/41, Act for puneisement of thame that trublis the parliament, sessioun and uther jugementis.
Conclusion
When a man litigated regularly, who his lawyers were was a fact naturally known to others within the profession. Alexander Robertson of Strowan, for example, was known always to have employed the advocate John McLeod and Roderick McLeod ws. Since these were his “known lawyers”, notification to them person- ally was deemed to be notification to Strowan himself, just as deeds in the cus- tody of a man’s doer were deemed to be in the custody of the man himself.186
180 On remissions, see Christopher Gane, “The effect of a pardon in Scots Law,” Juridical Review (1980): 18–46. 181 J. Grant, Cassell’s Old and New Edinburgh (3 vols, London: Cassell, Petter, Galpin & Co., 1881–1883), i, 196. He was killed by Gilbert Kennedy of Auchtyfardel, who was outlawed but later returned to Edinburgh. 182 See Finlay, Community of the College of Justice, 144–5, 155 n. 185. 183 alsp, Arniston collection, vol 177, no. 8, Information for Ilay Campbell hma v Alexander Paterson ws, 24 Sept. 1789. 184 gca, Glasgow tcm, C1/1/33, fol. 488. 185 alsp, Miscellaneous collection, ser. 17, vol. (1727–8), no. 107, Petition and Complaint of the Faculty of Advocates, 12 Jul. 1728, p. 1. 186 alsp, Pitfour collection, vol. 16, no. 12, The Petition and Complaint of Mr James Baillie Writer to the Signet, 8 Feb. 1743; see the comment in nrs, Papers of the earls of Airlie, GD16/41/912, Adam Mercer to Lord Airlie, 15 Dec. 1729.
Strowan was celebrated for his “manifest Litigiosity”, but the men of business of all the greater landowners were necessarily well known in Edinburgh. It was no less the case that an agent would know where his client could be found if needed.187 In one case, concerning whether the duty of confidentiality owed by an agent to his employer extended to a clerk working in the agent’s office, it was argued that an “advocate, and agent or doer, are in law considered to be the party; and it will not be disputed that their clerks are in the same predicament.”188 As a result, it was concluded that a clerk could not give evi- dence against his employer’s client on the basis of his knowledge of correspon- dence in which the client’s line of defence was discussed. Lawyer-client relationships ran smoothly as a general rule. That, however, could never be taken for granted. For no apparent reason a client might sud- denly bypass his ordinary agent and commission another to perform some specific task. In some circumstances, this might suggest an element of distrust. Alexander Blair of Kinfauns, for example, made a will leaving his moveable goods to his sister, “without the knowledge of his ordinary Doer, in time of Session, altho the deed was signed at Multreeshill [in Edinburgh].”189 We can only speculate on why, despite his agent being near at hand, Blair had another lawyer draw up the deed. His family circumstances almost certainly played some part. Alienated from his wife, Blair denied the paternity of the children she had borne during the marriage and perhaps did not sufficiently trust his lawyer to maintain the secrecy of his testamentary arrangements. There was very much a two-way relationship between local writers and Edinburgh correspondents. While provincials needed procedural expertise and drafting skills from Edinburgh, those managing cases in the Court of Session needed someone on the ground who could co-ordinate tasks that had to be carried out locally. Once they found a suitable local correspondent, they tended to stick with him. As the Edinburgh writer Duncan Macdonald wrote to Alexander McAlester in Campbeltown in 1764: “If I have any thing to do in that corner of the country, you may be assured none else will be employed.”190 Where no regular relationship existed, and a one-off transaction was required, then it was necessary to get the name of a good local writer. It natu- rally helped if this local agent already had some Edinburgh connections.
187 E.g., nrs, Melrose correspondence, GD220/5/1741/12. 188 alsp, Arniston collection, vol. 90, no. 2, The Petition of Lewis Ray and ors, present Magistrates and Counsellors of the Borough of Fortrose, 10 Jul 1767, p. 20. 189 alsp, Forbes collection, vol. 6, Memorial for Mrs Anna Blair and Mr William Lyon Advocate, her husband, 16 Feb. 1724, fol. 5564. 190 nrs, Papers of Alexander McAlester, writer in Campbeltown, SC54/22/9, 15 Jun. 1764.
Archibald Swinton wrote in 1790 to the Inverness writer, Campbell McIntosh, asking him to see to the execution of a summons of reduction against the heirs of entail of Hugh Ross of Kerse. McIntosh was to employ local messengers to carry out citations as quickly as possible and see to their payment.191 In return, Swinton offered to pay him in Edinburgh via Charles McIntosh ws “or any other person here you think proper.”192 This suggests an isolated transaction with McIntosh being selected following inquiries amongst Edinburgh writers with Inverness-shire connections. Law was a lifelong vocation and practitioners were generally at pains to resolve professional differences if they could. There were, of course, excep- tions to this. Professional rivalries could be career-long and, in the case of the bar in Edinburgh, might survive all the way to the bench. Jealousies sometimes stemmed from over-identifying with one’s client. One example is the com- plaint made by the advocate Archibald Murray, and the writer James Hay, in 1741. Their target was another Edinburgh writer, David Dickson, and their anger stemmed from an action which had already apparently been determined with- out objection. Dickson, however, had allegedly had printed two sets of answers on his client’s behalf: one was given to the judges, the other he circulated out- side the court. The latter version contained slurs upon fellow lawyers, suggest- ing that they had fabricated the action. The case, he alleged, had been made up
by some sneaking Counsellors who are ashamed to own their own Manufacture; but for a puny Fee can write in a Client’s Name, without regard to Honour or Truth, in support of any Plea, howsoever base.193
The complainers regarded this as a gross injury, partly because it arose in the course of their employment and partly because the method adopted was “so singular and pernicious in its Consequences.”
191 By the end of the century the names of advocates, writers to the signet and solicitors at law in Edinburgh were readily available to the public because they were printed in local Almanacks. These also contained the names of local lawyers e.g. procurators in Aberdeen appear in The Aberdeen Almanack for the year 1790 (Aberdeen: J. Chalmers & Co., 1790), 179. The Glasgow procurators appear in The British Almanack, and Glasgow Register, for 1800 (Edinburgh: Alex. Chapman & Co, 1800), 237. 192 nrs, Fraser-Mackintosh collection, GD128/41/5. Charles was son of the Inverness Merchant John McIntosh. Whether or not related to Campbell, he would have clients in Inverness and lines of credit there. For Campbell McIntosh, see Finlay, ed. arnp, ii, no. 2350. 193 alsp, Hamilton-Gordon collection, 1st collection, vol. 41, no. 50, The Petition and Complaint of Mr Archibald Murray Advocate, and James Hay of Tarbet, Writer in Edinburgh, 6 Jan. 1741.
The threat of violence from a client’s opponent was always a concern. In 1712 the advocate John Spotswood petitioned the court to protect him and his ser- vant from Alexander Brown of Bassindean, whom he was suing on behalf of a client for having defrauded his creditors. According to the complaint, Brown had assaulted Spotswood’s servant, Archibald Smith, next to the equestrian statue of Charles ii outside the court, threatening him and his master that he would turn their crowns blacker than that of the king, and that “Parliament House would be the better ye were both out of it, and I hope to see you both Hang’d.”194 Sixteen months earlier, Brown had insulted Spotswood’s sister- in-law during a chance encounter. On that occasion, he had alleged that Spotswood was a cheat, like his father (another advocate) whose “Gown was turned over his Head for Cheating.” Similar problems with witnesses and opposing parties beset other advocates on account of aggression towards witnesses.195 Such pitfalls of legal practice, for those who achieved success, were far out- weighed by its rewards. A successful advocate or writer could amass consider- able wealth and such men generally wasted little time in turning this into significant landed estates which might be translated into votes and political interest. The mechanics of making money form the subject of the next chapter.
194 alsp, Arniston collection, vol. 5, no. 1, Petition for John Spotswood of that Ilk, Advocate, 22 Jan. 1712. For the gown being turned over the head as a form of public disgrace used as against advocates, see John Finlay, “Ethics, etiquette and the early modern Scots advo- cate,” Juridical Review (2006), 162. See also below, page 159. 195 Finlay, Community of the Community of the College of Justice, 133–4, 144–5.
If the cause is gained, they receive their payment at the end, perhaps without a grudge; but if it is lost, the clients, upon many occasions, most unwillingly pay the accompt which is due.1
Although it was one of Britain’s finest Georgian houses, the early history of Duff House, near Banff, was an unhappy one. The construction of the house, between 1735 and 1740, led to a legal dipute between William Duff, Lord Braco, who com- missioned it, and William Adam, the architect who designed it.2 Their disagree- ment was over the question of whether Adam was entitled simply to “suitable Honoraries as Architect”, together with the price of any materials he furnished for building the house, or whether he might claim payment of the cost of build- ing the house at the customary rate of payment for a construction of that nature. By “Honoraries” was meant an honorarium, a reward of whatever the client thought fit to provide to one who had applied his special skills in his service. Braco was perfectly willing to pay such an honorarium. What he did not expect was an invoice from Adam for labour and building materials. Braco had paid the workmen directly, even though some of them were hired at the behest of the architect and, in his view, Adam would gain a huge profit of £5000 if the account rendered were to be paid. Each party to the dispute professed to have a different understanding of their verbal agreement. According to Braco, Adam
was by him considered as a Person of a liberal Profession, and to be treated not like a Tradesman who was to give in a Bill, but like a Lawyer who receives, or a Physician who pays Visit, in order to give their Advice, who get their Fees or Honoraries without presenting an Accompt, or giving a Receipt.3
1 Alsp, Hermand collection, vol. 10, no. 6, Information for Robert Boswell, Writer to the Signet, Pursuer; Against Thomas Ronald in Mackailston, Defender, 5 Jul. 1783, p. 1 (per James Boswell, advocate). 2 For background, see John Gifford, William Adam 1689–1748: A Life and Times of Scotland’s Universal Architect (Edinburgh: Mainstream, 1989), 149–155, 179–82. 3 Alsp, Elchies collection, vol. 14, no. 62, The Petition for William Lord Braco against Mr William Adams, Architect, 20 Jun. 1743, p. 5. Also found in Kilkerran collection, vol. 9, no. 18. Adam
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The architect’s role, so far as Braco was concerned, was to set down on paper “the Productions of his Thought and Genius.” He never imagined that “the mechanical or bodily Part, or the Execution of the Architect’s Designs…was any part of Mr Adams Province.”4 So runs the pleading to which the advocate William Grant (see opposite, Illustration 2) subscribed his name in 1743. The argument had particular reso- nance for Grant because he also followed a liberal profession whose members were equally entitled to an honorarium in the Roman sense. Like the architect and builder, his profession also had two dimensions: the inventive and skilled role of the advocate had its counterpart in the more procedural, and lower status, role of the law agent. According to Lord Bankton, writing a decade later, the advocate should be rewarded for good service from his clients, “as they can afford it, and as the cause requires.”5 This was essentially a private arrangement, untroubled by the public regulation of fees which affected writers to the signet and lesser figures in the legal profession, such as clerks and extractors, who could only charge so much per page provided they achieved the minimum number of lines of text and words per line.6 An attempt in 1670 to impose a fee structure on the bar was resisted and legislation on the matter in 1672 and 1695 had no lasting effect in practice.7 The relative freedom to reward an advocate’s service does not mean, however, there were no controls over the honorarium. Costs were taxed by the court and quite often disputed; a successful litigant, who had been over- generous to his lawyers or had employed too many of them, would have to justify doing so if he wanted to recover his costs.8 As one litigant complained in 1728, “Parties must not be allowed to employ many Procurators and Advocates of Purpose [i.e. in order to] to seek large Damages.”9 Secondly, advocates could not afford to price themselves out of the market in which
preferred to act as both builder and architect in his projects: Margaret H.B. Sanderson, Robert Adam and Scotland (Edinburgh: H.M.S.O., 1992), 8–10; on his relations with Braco, see ibid., 15; also Gifford, William Adam, 31, 34, 36–9, 46. 4 The Petition for William Lord Braco, p. 16. 5 Andrew Mcdouall, Lord Bankton, An Institute of the Law of Scotland (3 vols, Edinburgh, 1751– 53; reprinted, Stair Society, 1993–1995), IV.3.14. See Finlay, “Ethics, etiquette and the early modern Scots advocate,” 159–161. 6 See Finlay, Community of the College of Justice, 198–9. 7 See below, pages 78, 83, 87. 8 On taxation, see below, page 93. 9 Alsp, Hamilton-Gordon collection, 1st coll., vol. 28, no. 1, Petition of John Rennick and James M’Askey Tobacconists in Dumfries against James Hannay Merchant in Kirkcudbright, 10 Jan. 1728, p. 4.
Illustration 2 William Grant (1701–1764), of Prestongrange, advocate, lord advocate and lord of session. By Allan Ramsay. Reproduced by permission of the Scottish National Portrait Gallery. they operated. As will be shown below, fees fell into a stereotypical pattern and the two-guinea consultation seems to have become the norm, at least in the first half of the century, although it increased as time went on.10 This
10 On the 1695 regulations, see below, page 78.
The usual consultation that Glendoicks servants get from the Toun is ten shillings tho three half crouns is the ordinary thing they get and Kilgrastoun having only one servant, his fees are a Croun. As for their footmen I paid them at the consultation for they were all waiting on at the advocats stair foot when we came doun.13
Early modern lawyers across Europe had a reputation for greed.14 This was not always fair. Jacques van Bourits decried the envy exhibited against advocates in Friesland claiming that, under an Ordonnance of 1602, which set a tariff of fees, no lawyers anywhere were as poorly rewarded as in his province.15 In Scotland, the best lawyers certainly made a very good living, yet even their fees were often quite modest compared to the cumulative expense of litigation which included many fixed costs including various registration and other fees. By contrast, procurators in the inferior courts were subject to fee tables and might
11 A.J.S. Gibson and T.C. Smout, Prices, Food and Wages in Scotland 1550–1780 (Cambridge: Cambridge University Press, 1995), Tables 8.14, 9.3. 12 Elca, HAD/4/6/96/29/29, 42. 13 Pkca, B59/38/2/144/7, George Richardson to George Miller, 8 Mar. 1736. A half crown was 2s 6d. 14 William Bowsma, “Lawyers and early modern culture,” American Historical Review 78 (1973): 303–327. 15 Van Bourits, (Bouricius), De Officio Advocati, cap. xliv.
Advocates’ Income
When it comes to the mechanics of making money, the services of advocates had traditionally been retained by regular litigants, such as substantial land- owners and town councils, on a long-term basis through the payment of a pen- sion.17 An indenture would be drafted to reflect this relationship and would include the level of pension, the schedule of payment and, typically, a clause excusing the lawyer from acting against any client to whom he was pre- engaged. Thus advocates would develop a hierarchy of clients depending on the date at which their services were retained. The pension invoved might be for life or a defined period. Alexander Murray of Broughton in 1705, for example, retained the advocate Alexander Ferguson of Isle for two years at the rate of £60 Scots per annum (payable at Candlemas and Lammas in equal instalments). Ferguson was
to be advocat for me in all causes wherein I shall hapen to be concerned either before the Lords of Councell and Session or any other Suprem Judges within this nation.18
Thus Ferguson undertook to act before the Court of Session, the High Court of Justiciary, the Privy Council and the High Court of Admiralty. However, Murray exempted him from acting against any person from whom he already had a letter of pension, so that “he is to have liberty to serve his said former clients.”19 Simply for retaining counsel, £60 Scots (equivalent to £5 sterling), was not a trifling sum. By comparison, the annual wage of an experienced farm servant in Lanarkshire in 1708 was £24 Scots.20 Retainers were typically also found in early modern England. Eventually they came to be viewed in a negative light there, although in fact the formal
16 On tables, see Finlay, “Tax the Attornies,” 152, 164. 17 This is discussed in John Finlay, Men of Law in Pre-Reformation Scotland (East Linton: Tuckwell Press, 2000), 38–47. 18 Nrs, Broughton of Cally papers, GD10/848. 19 The substance of this obligation had barely changed since the sixteenth century: see Finlay, Men of Law, 38–47. 20 Gibson and Smout, Prices, Food and Wages, 321. Calculating an overall wage is difficult due to money payments being supplemented by the inclusion of board and goods in kind.
21 Baker, Legal Profession and the Common Law, 123; Duman, English and Colonial Bars, 42–3. 22 Nls, Saltoun papers, ms 16675, fol. 67. 23 See Finlay, Community of the College, 99–100. 24 Alsp, Craigie collection, vol. 4, no. 83, Information for Normand [sic] McLeod of that Ilk, 31 Jan. 1730, p. 3. 25 Rab A. Houston, “Mortality in early modern Scotland: the life expectancy of Advocates,” Continuity and Change: 7 (1992) 47. 26 Alsp, Craigie collection, vol. 4, no. 83, Information for Mr Alexander McLeod Advocate against the Laird of McLeod, 2 Feb. 1730, p. 1 (also Hamilton-Gordon 1st collection, vol. 38, no. 17). 27 Nls, Mackenzie of Coul papers, ms 1336, fol. 74.
Retainers formed a small part of the total amount of fees earned by Scottish advocates in the eighteenth century. It is often impossible to make an accurate assessment of overall earnings taking into account pensions and fees paid for consultations, opinions and pleading.28 Ilay Campbell and Robert McQueen, in the 1770s, were said to earn in total about £1500 to £2000 annually.29 James Boswell, in a record week for him, made 23 guineas in 1773 and cleared 120 guineas in the summer session in 1774.30 Walter Scott, whose practice at the bar was never extensive, had, like many did, a slow start. He made £24 in his first year (1792–3) rising to £144 in 1797 and to more than £228 in 1802–3.31 As late as 1830, William Chambers estimated that it was possible to make £4000 annually at the bar but that few earned more than a quarter of that, with fees for writing papers ranging from two to ten guineas.32
Fees and Expenses
Advocates’ fees were paid in multiples of guineas.33 As noted above, they were entitled to honoraria, gifts in return for service, rather than contractual pay- ments.34 This was a reward which counsel were expected to accept. The Court of Session in one case even refused to allow an advocate to decline a fee because that was thought to form a bad precedent.35 While the advocate con- cerned had expressed his reluctance to take the money, the successful client had urged payment, thinking it was “his duty to make a suitable acknowledge- ment to counsel who had thus protected him.” Notwithstanding this expression of judicial disapproval, there are examples of advocates refusing fees or directing payment to charitable causes. In 1749, when Edinburgh town council offered the lord advocate 25 guineas for obtain- ing a warrant for an election, he initially accepted but then asked for it to be
28 Some examples, however, are given by Shaw, Management of Scottish Society, 24. 29 Frank Brady, James Boswell: The Later Years (London, 1984), 96. 30 Ibid., 43; Milne, Boswell’s Edinburgh Journals, 132. 31 William K. Dickson, “Sir Walter Scot and the Parlament House,” Juridical Review 42 (1930): 2; T.P. McDonald, “Walter Scott’s fee book,” Juridical Review 62 (1950): 288. 32 William Chambers, The Book of Scotland (Edinburgh: R. Buchanan, 1830), 143. 33 This reflects practice in England; see Lemmings, Professors of the Law, 190. 34 See Finlay, “Ethics, etiquette and the early modern Scots advocate,” 159–160; Bankton, Inst., IV.3.14. The same idea was also prevalent in England: Baker, Legal Profession and the Common Law, 118–123. 35 Alsp, Miscellaneous Collection, series vii, vol. 5 (1782–85), The Petition of George Bean, Writer in Inverness, 20 Jul. 1784, p. 3.
36 Eca, Edinburgh Town Council Minutes, SL1/1/68, fol. 6. 37 Scott and Pottle, ed. Private Papers of James Boswell, vol. xv, 285. 38 Nrs, B48/9/13, fol. 252; B48/9/14, fols. 541–2. 39 Ibid, B48/9/14, fol. 586. 40 These seem to be rare. Examples include the accounts of processes managed by John Mackenzie ws: nls, Delvine Papers, ms 1194. 41 Stewart, ed. The Minute Book of the Faculty of Advocates, 1751–1783, 233. The editor suggests that reluctance to grant receipts (the issue was first mooted in 1760) may have been due to the fact that receipts might have implied contractual payments rather than honoraria. There is an exception for the lord advocate who granted yearly receipts to the Convention of Royal Burghs: eca, SL30/4/10, receipt from Robert Craigie dated 2 Jul. 1744. See also Johnston v Bell, Mor. 11419 which, though concerning physicians, also served as an author- ity for advocates. 42 Alsp, Hamilton-Gordon collection, 1st ser., vol. 9, no. 37, The Petition of the Representatives of the deceast Andrew Barclay Writer in Edinburgh, 28 Feb. 1740, p. 2, per James Ferguson; Mackenzie v Burntisland, 26 Dec. 1728, Mor. 11421. On the oath de veritate, see Richard H. Helmholz, The Spirit of Classical Canon Law (Athens, Georgia: University of Georgia Press, 1996), 155–6. 43 Alsp, Hamilton-Gordon collection, 1st ser., vol. 9, no. 37, Answers for Mr David Couper Writer in Edinburgh to The Petition of the Representatives of Andrew Barclay, 18 Dec. 1740, p. 3, per Archibald Hamilton. Contrary to what Hamilton claimed, Scots advocates did sue for their fees in earlier practice: Finlay, Men of Law, 43–4.
Receipts for pensions, on the other hand, do exist but are rare. An example is the receipt given by Robert Craigie (then lord advocate) in 1742 in return for the payment of one hundred guineas, representing four years’ pension from the duke of Buccleuch.44 In 1733 the writer James Naysmith informed his client that he had paid five guineas on his behalf to the advocate Andrew Mcdouall “which I suppose his letter will acknowledge as I have no other voucher for it.”45 While this was probably not a pension, the lack of any formal receipt is typical. The onus was on writers to ensure that payments to counsel were made. In 1812, when the advocate James Miller sued John Grainger ws for non-payment for the balance of his fees (amounting to £525), Grainger initially denied liability and then blamed impoverished clients for failing to make advances of money. He set- tled out of court but was censured by the ws Society for keeping his accounts “in the most confused and irregular manner without Books of any description.”46 Another advocate, James Grahame, received in 1803 a draught for nineteen guin- eas from Andrew Mitchell, his brother’s partner in Glasgow, who described him- self as being “mortified” that Grahame had needed to write asking for payment.47 Despite the concept of the honorarium, in practice there were going rates of payment in respect of certain activities.48 As well as a retaining fee, fees might be paid for consulting on points of law, pleading and drafting or revising memorials and other papers. In 1672, £18 Scots was the prescribed maximum to be paid by a nobleman for a consultation, modified by the judges in 1695, with royal approval, to “nine dollars or two guineas at the most.”49 These enactments, including dif- ferential payments prescribed according to the social standing of the client, were generally ignored. As noted earlier, however, two-guineas for a consultation was quite commonly paid, by clients of all descriptions, for much of the following century, along with half a crown to the advocate’s clerk. This seems to be the amount which the agent George Robertson meant when describing “ane ordinar consultation” given to an advocate whom he approached for an opinion in the absence of the duke of Montrose’s ordinary advocate, James Graham of Airth.50
44 Nrs, Papers of the Montague-Douglas-Scott Family, Dukes of Buccleuch, GD224, 930/6. 45 Nrs, Broughton of Cally papers, GD10/1421/8/375/1. 46 Sl, ws Society Sederunt book 1806–1819, fols. 342–3. 47 Gca, Letterbook of Thomas and Robert Grahame, T-MJ/48, fol. 307. 48 The same is true in England by the seventeenth century: Duman, English and Colonial Bars, 42. 49 Acts of Sederunt 1553–1790, 215. An equivalent measure was first enacted by the 1672 Act concerning the regulation of the judicatories, s27: rps, 1672/6/50. 50 Nrs, Montrose correspondence, GD220/5/1744/1. Just to confuse matters, the advocate approached was also called James Graham (young James, almost certainly of Dougalston but possibly Graham of Buchlyvie).
Some clients were disposed to be generous. Lord Lovat heartily approved of his agent paying three guineas to Robert Craigie, rather than two, “for wee must not lose such a great man by sparing some guineas.”51 For drawing answers or an information, the fee might be as low as a single guinea (depending on how much effort was required). If it was necessary for the advocate to plead before the court, the fee might be considerably higher than that for a mere consultation.52 John Mackenzie’s account book reveals a range of payments from one guinea to five guineas reflecting the standing of counsel and the busi- ness involved, from stating a case or drafting a representation, to preparing for and undertaking debates viva voce before the lords of session.53 Consultations aside, fees in general varied with the status of the counsel employed. As noted elsewhere (see page 60), asking a senior man to undertake routine tasks was needlessly expensive. In 1870 the virtues of cheap opinions (“guinea opinions”), commissioned from more junior counsel who had time to digest the facts and consider the authorities, were recommended to practitio- ners.54 The tendency of Victorian country writers to persist in favouring a few well-known lawyers, or men recommended by their Edinburgh agent, was a trait clearly evident in the eighteenth century. Business was concentrated in the hands of a few while valuable experience was denied to others. Senior men hardly had time to write opinions during the session, so highly in demand were their services, and the leaders of the bar enjoyed a disproportionately large share of Court of Session business.55 The detailed record of expenses in the case of Stewart of Culross v Duncan McDonell of Glengarry and Others provides a good illustration in the 1780s.56
51 Nrs, Fraser papers, RH15/13/52, Lord Lovat to William Fraser ws, 7 Nov. 1741. Yet Craigie typically drew three (and sometimes five) guineas as lord advocate. See, for instance, nls, Delvine papers, ms 1194, fols. 24, 42, 44. Craigie was lord advocate 1742–1746. 52 E.g. alsp, Report by Alexander Tait, clerk of session, in the cause Henry Davidson Esq. against Sir Hector M’Kenzie of Gairloch and his curators, 3 Aug 1774, Elphinstone Collection, vol. 24, no. 27. In this case Alexander Elphinstone was paid a guinea for drawing a memo- rial and two guineas per consultation. 53 See generally, nls, Delvine papers, mss 1194. 54 Anon., “Cheap opinions,” Journal of Jurisprudence 14 (1870), 149–50. 55 See Finlay, Community of the College of Justice, 137–41. 56 This is found within alsp, The Petition of George Bean, Writer in Inverness (see above, note 35). A complication is the length of the case—which ran from Dec. 1781 to June 1784—and the fact that the pursuer was found to be entitled to the benefit of the poor’s roll in Feb. 1783. Lawyers’ fees incurred before 1783 were paid (totalling 11 guineas, not including clerks’ fees), those incurred after were not paid until the case was concluded. The pursuer won and costs were awarded in his favour.
In total the advocate William Miller was entitled to fifteen guineas for his work on the case, his colleague Robert Dundas (who became solicitor general during the case) earned seven guineas (two guineas of which were paid for a brief consultation), and David Rae four guineas. In June 1784, at the final debate in the case, Dundas and Miller each received five guineas for conducting the pleading before the judges. In the case of McWilliam v Murray, the expenses for which were not disputed, the advocate William Bannatyne McLeod received a guinea for drawing the memorial in February 1777, another one in January 1778 to draft answers to a representation, and a final one in June to correct and revise answers drafted by the agent to a second representation.57 This is in line with what had been paid to counsel in a criminal prosecution at the instance of the York Building Company against Thomas Mathie for forgery in 1727.58 For consultation fees Robert Dundas, lord advocate, received four guineas, the solicitor general Charles Areskine three but another six advocates each received two guineas for assistance provided before the trial. While the evidence suggests that the level of honoraria generally increased as the century progressed, it may not have kept pace with changes in the cost of living, although, as will be discussed later, advocates did better than writers to the signet whose regulated fees fell behind. A committee of the ws Society commented on this in 1804. It suggested, on the English model, that half-guinea fees for making motions in court should be introduced for counsel as a “proper addition to the profits of the bar” taking the view that, for many items of busi- ness which they performed, advocates were “very inadequately compensated.”59 On the other hand, the same committee objected to the payment of a fee of 7s 6d to the lawyer’s clerk that was made alongside every fee paid to the lawyer himself. Of that, five shillings went to the lawyer’s first clerk and the remainder to his amanuensis.60 The first clerk was regarded simply as a sinecurist; as the committee put it, there was something absurd about the fact that when an advocate received “a fee of a guinea for writing a paper or pleading a cause, his clerk should receive 7/6 for doing nothing in the world.”61
57 Account of expenses attached to alsp, Meadowbank Collection, vol. 43, no. 12, The Petition of William Murray, tenant in Tillynaught, 24 Nov. 1778. McLeod was admitted advo- cate in 1765. 58 Nls, Saltoun papers, ms 17539, fol. 18. 59 Sl, “Report of the Committee on Fees, appointed by General Meeting of the Society of Writers to the Signet 28th May 1804,” 44. 60 Ibid., 45 61 Ibid., 46. This view is at odds with the general view of first clerks as agents, but the ws Society, whose members competed for such work, was not disinterested.
The London Dimension
With the advent of appeals to the House of Lords in the wake of the 1707 Union, some retainer agreements underwent a technical change in having to contem- plate, for the first time, actions outside Scotland. Thus the earl of Selkirk and Ruglen in September 1739 constituted Charles Areskine of Tinwald, then lord advocate, as his advocate undertaking to pay him £20 sterling as
ane Honorary and Retaining Fee to him as Council and Lawyer for us in all and whatsoever causes we shall Happen to have in any of the Courts of Judicature in Great Brittain.62
Arrangements of this kind were probably a regular and welcome bonus for crown lawyers to set aside their employment as assessors by Edinburgh town council and, in the case of the lord advocate, the Convention of Royal Burghs.63 Lady Mary Drummond paid a retaining fee of three guineas in 1748 to “Mr Erskine” and another of two guineas to Alexander Hume Campbell, the latter was spe- cifically for all Lords’ appeals in respect of a case concerning succession.64 Civil and criminal business in Scotland was reasonably well paid but not as lucrative as pleading in the House of Lords, where the standard fee for leading counsel in the 1780s was the considerable sum of ten guineas per day.65 There was clearly demand for good advocates to do so. In 1745 in contemplation of an appeal to the House of Lords, Lord Lovat sought to secure the services of William Murray (later Lord Mansfield) and, “even if it should cost me a 100 gueneas”, Charles Erskine, the son of his friend and the former lord advocate, Lord Tinwald.66 Preserved amongst the papers of the Faculty of Advocates is
62 Nls, Ch. 4413. Areskine, previously solicitor general, was appointed lord advocate in June 1737 when his predecessor Duncan Forbes became president of the Court of Session. The retaining fee was four times that of Alexander Ferguson for cases heard in Scotland (see above, page 74). 63 King’s serjeants in Ireland could enter into similar private arrangements, see A.R. Hart, A History of The King’s Serjeants at Law in Ireland (Dublin: Four Courts Press, 2000), 72. 64 Nrs, Papers of the Drummond Family, earls of Perth, GD160/581/1. The case may have been heard eventually in 1751, Thomas Drummond v hma, 30 Apr. 1751: C.S. & P., i, 503. Presumably counsel referred to was Charles Erskine. Hume-Campbell and others pre- sented the case in 1751. 65 Lemmings, Professors of the Law, 194. 66 Paton, ed. Report on the Laing mss, ii, 298. Charles Erskine junior was called to the bar in Middle Temple in 1739. He was also a member of Lincoln’s Inn. His brother, James (later Lord Barjarg), was admitted advocate in 1743.
I beg to inform you that the Church must be as frugal as possible and if the appeal can be carried thro without additional counsel so much the better, but if you are of opinion that additional counsel is necessary, I must leave it to you to engage whom you may think best along with Mr Alexander.69
It is worth noting, in passing, that Murray was quite prepared to ignore a client’s wishes in regard to the instruction of counsel in Lords’ appeals. In 1807, for exam- ple, he communicated to Spottiswoode the desire of the ministers of Campbel town that the lord advocate be one of those who acted for them, only to then leave the matter entirely to the judgement of Spottiswoode as manager of the appeal.70
ws Income
The income of writers to the signet derived from three main sources.71 The first was regulated fees in respect of documents under the signet, which they alone
67 Adv. Lib., fr 339r/12. The case is reported in C.S.& P., iii, 115. 68 On appeal cases, see John Finlay, “Scots lawyers and House of Lords appeals in Eighteenth- century Britain,” Journal of Legal History 32 (2011): 249–277. 69 Nrs, General Assembly records, CH1/5/100, unpaginated, entry dated 21 Jan. 1806. Contractions removed. Mr Alexander is not further identified in Murray’s letter book but it was probably a reference to William Alexander, barister of Middle Temple. 70 Ibid., entry dated 4 Feb. 1807. 71 On writers to the signet generally, see Finlay, Community of the College of Justice, Chapter 6.
The Society consists of at present 110 and its Certain that one half of that number is more than enough to satisfie the Demands for the Employment many of whom cannot live upon their Incomes, some are therefore oblidged to fall on other methods to assist in maintaining their families, while others leave of[f] the business entirely and take to mean employ- ments to the Disgrace of the Society.77
72 E.g. rps, 1672/26/50, Act anent the regulation of the judicatories, ss. 29–30. 73 On whom, see Finlay, Community of the College of Justice, 197–8. 74 Nls, Minto papers, ms 11033, fol. 22r. Discussed further below. 75 Nrs, Court of Session, books of sederunt, CS1/11, fols. 173r–174r. 76 Ibid., fol. 174r. 77 Nls, Minto papers, ms 11033 fol. 21v. This document owes much of its phraseology to Alexander McMillan’s memorial of 1731: History of the ws Society, 389–94.
As with the practisting bar, there were winners and losers. Successful and energetic writers to the signet generated wealth and managed to develop networks of clients, build up writing chambers, and attract apprentices. Less successful men, like William Macpherson, found limited return for the large financial investment (including a signing on fee as new members of the ws Society) required to be commissioned as a writer to the signet. In a case brought against him in 1811 for underpricing, Macpherson argued that his family “were people in a low sphere of life, and his clients consisted of this class of men as it never was his fortune to get clients of a higher rank.”78 Despite his “low situation in life” and the temptations available to him, he claimed to have “maintained a character pure & unsullied.” Living at the cheap end of the profession, he had no writing chamber and slept in a room in his sister’s house.79 For good measure, he also alleged that he was not alone in undercutting the regulated fees of his profession and that it was a common practice. One problem men like Macpherson faced was increasing competition. By the 1780s, when he began in business, the admission rate of writers to the sig- net had begun, for the first time, to eclipse the rate of admission to the Faculty of Advocates.80 The profession had recovered from a dwindling number of admissions to the ws Society in the 1730s and 1740s, a period of economic dif- ficulty which saw both a spike in the cost of living and a decline in Court of Session business. Writers to the signet were at the forefront of property accumulation as Edinburgh’s New Town developed but assessing their net worth is not always easy. A successful man like Samuel Mitchelson senior was owed significant amounts of money. For the benefit of his children, Mitchelson carefully made an inventory of these debts which he formally recorded in 1787.81 The total exceeded £13295, not including £600 sterling owed by John Anstruther which had recently been paid. It is interesting that 15000 merks Scots (just over £837 sterling) was still owing as tocher under the 1753 marriage contract following which he married Jean, daughter of John Oliver of Dinlabyre. Most of the debt arose from personal obligations under bills and bonds, but £1500 was held
78 Nrs, Court of Session, Bill Chamber, CS271/58625, Answers for William McPherson Writer to the Signet, To the Minute of Patrick Russell Esq., 1811. On legal societies generally, see Chapter Seven. 79 Ibid., Duplies for William Macpherson Writer to the Signet to the Replies for the Procurator Fiscal of said Society, 1811. 80 Finlay, Community of the College of Justice, 9–10. 81 Nrs, Register of Deeds, RD2/250, fols. 540–3.
Pensions and Gratifications
In addition to fees for preparing certain documents passing under the signet, writers to the signet might, like advocates, be in receipt of a pension. Hugh Somerville ws, for example, “a gentleman of most unblemished character, knowledge, and experience, in business”, is noted as having received an annual pension of £10 sterling from John Baillie of Walston.82 This exceeded the 100 merks Scots which William Innes ws had received annually for managing the affairs of Sir Robert Gordon of Gordounston at the turn of the century.83 Innes eventually had to sue Gordon to recover his expenses (including an advance made in 1710 so that his client could pay for a consultation with an advocate).84 In his account book, John Mackenzie ws records the payment of a number of annual pensions, including £10 from the earl of Aboyn “for advice and manage- ment of your Lordship’s affairs”; the same from Francis Stuart of Pittendreich and the earl of Moray; and £25 per annum from the earl of Eglinton.85 Lesser sums were also paid, such as £7 10s representing his pension for negotiating the affairs of John Mackenzie of Applecross over eighteen months.86 There were also sums received for acting as cashier and managing the accounts of clients. In the same way, John Tait ws was paid £50 for managing the affairs of the advocate James Stevenson Rogers in a 1772 account; this including agenting several processes and “managing his money matters to the extent of £5359.”87 When in funds, clients could be generous. In 1739, the magistrates of Inverkeithing, in tribute to his diligence, paid to Hew Crawford ws an extra guinea (and his servants half as much) over and above what he had charged in his account.88 Edinburgh, as the wealthiest town council, sometimes gave larger bonuses. Alexander Hamilton ws received ten guineas for drafting a bond for the council in 1725, plus an extra two for his servant; Charles Stewart
82 Alsp, Meadowbank collection, vol. 26, no. 14, The Petition of Helen and Jacobina Hamiltons, 3 Dec. 1762, p. 13. Walston was dead by 1751. 83 Alsp, Hamilton-Gordon 1st collection, vol. 31, no. 22, Answers for William Innes Writer to the Signet to the Petition of Sir Robert Gordon of Gordonstoun, 22 Jan. 1729, p. 1. 84 Alsp, ibid., Answers for William Innes, 24 Feb. 1729, p. 6. 85 nls, Delvine papers, ms 1195, fols. 15, 21, 33, 93. 86 Ibid., fol. 53.; see also, e.g. fols. 13, 183. 87 Nrs, D & J.H. Campbell ws papers, GD253/140/7. 88 Nrs, Papers of the Henderson family of Fordell, GD172/158.
I managed the several processes and claims with all the frugality in my power and the article of pains is as moderate as I could possibly state having any thing adequate to my trouble.94
One of Fraser’s accounts, submitted in 1755, gives a hint of the services he had provided to aid his client in a criminal defence. What he considered adequate to his trouble on this occasion, for work carried out between February and August 1755, was £20 out of a total account of just over £57.95 The account he rendered also included a guinea each for two long memorials he had drafted for consulting counsel in March and July and five shillings for a shorter memo- rial “to get Pitfours advice upon hearing you was come to Edinburgh.” He charged a guinea for drawing interrogatories to be put to Cameron’s own wit- nesses and 10/6 for a cross interrogatory to be put to crown witnesses. Both of
89 Eca, Edinburgh tcm, SL1/1/51 fol. 41; SL1/1/118 fol. 230. 90 Ibid., SL1/1/64, fol. 360. 91 Ibid., SL1/1/83 fol. 184. 92 Shaw, Management of Scottish Society, 35. 93 Aberdeen City and Aberdeenshire Archives [acaa], Society of Advocates, Sederunt book 1777–1799, D528/2/1, 26 Nov. 1782. On the Laing case, see below, page 242. 94 Nrs, Campbell of Dunstaffnage papers, GD202/68/9. Cameron was charged with forgery: nrs, Court of Session, books of sederunt, CS1/14, fol. 34r. 95 Nls, Acc 11137/12.
Fees
The history of the regulation of fees charged by writers to the signet can be found in a ws Committee report produced in 1804.96 This tells a fascinating story. The privileged fees relating to court business were set in the 1537 Act of Parliament which ratified the foundation of the College of Justice and later increased in 1606 in an act of the privy council.97 In 1621 the increase was rati- fied by parliament and continued until augmented by further legislation in 1672.98 The latter Act was rescinded in an unprinted Act in 1681 but this was ignored in practice and the 1672 fees continued in operation until 1751, despite their loss in value. The pressure of inflation led, as noted earlier, to agitation in 1727 to have the fees increased and the judges approved a report the following year for enhancing them.99 This was a preliminary to a parliamentary bill being raised to put the new table of fees into effect. Despite lobbying in London by members of the ws Society, the bill was defeated by a single vote in parliament in 1732.100 The 1804 committee suggested, optimistically, that the defeat may have been the result of parliamentarians thinking that the matter was one which ought to be regulated by the Society itself. According to the 1804 report, the fees approved in the 1728 judicial report were finally implemented by the lords of session in July 1751 when it was com- plained that, in the absence of any regulation since 1681, the fees had become “uncertain and arbitrary, and the members accounts of the same have not been regular and uniform, which has occasioned sundry complaints and disputes.”101 This suggests that the outdated regulations were being ignored necessitating
96 Sl, “Report of the Committee on Fees, appointed by General Meeting of the Society of Writers to the Signet 28th May 1804.” 97 David Masson, ed. Register of the Privy Council of Scotland (1st series, Edinburgh: H.M. General Register House, 1885), vii, 170. There were contemporary complaints about the “extortion” of writers: Anon., “A procurator-fiscal—what he was, what he is, and what he will be,” Journal of Jurisprudence 21 (1877), 69. 98 Rps, 1672/6/50, Act anent the regulation of the judicatories, s. 33. 99 Sl, ws Society Sederunt book 1714–1732, fols. 270, 310–11. See above, page 83. 100 Sl, Report of committee on fees 28 May 1804, 7. 101 Ibid., 8; sl, ws Society Sederunt book 1750–84, fol. 5. There is no corresponding entry in the relevant book of sederunt in July 1751: nrs, Court of Session, books of sederunt, C1/13.
Agent Fee
The 1804 comittee subdivided their report into three parts. The first dealt, as described, with fees exclusive to writers to the signet; the second dealt with the fees of judicial proceedings in the Court of Session and third with the fees of conveyancing and general business. There is no room here to discuss all these areas in detail. However, the agent fee, which had originally been paid to the advocate’s clerk, “according to the importance of the cause and length of time
102 The Society of Solicitors before the Court of Session against the Keeper, Commissioners, and Society of Clerks to the Signet, 25 Feb. 1800, Fac. Dec., no. clxvii, 372. 103 See below, pages 270–271.
to collect and put into proper shape the information necessary to enable the Counsel to plead or write in the cause; and for this he was entitled to charge at a certain rate per sheet, according to the length of the papers thus prepared by him.
Business in the Court of Session increased in the latter half of the eighteenth century, along with the number of practitioners. The mode of charging fees, however, did not change and by 1804 they still resembled payments to advo- cates’ clerks. Rather than receive a specified sum for a particular service, the agent was permitted
a sort of gratuitous, indefinite, slump [lump] sum, under the name of Agent fee, the amount of which is, in great measure, regulated, at the discretion of the Court, or of his Client.105
The alternative name for the agent fee was the ‘session fee’ which makes clearer the kind of payment it was. Provision in an account for the agent fee was sometimes left blank, in the hope of prompting a client towards generosity, particularly where some special service had been performed. William Elliot, Edinburgh agent for the burgh of Selkirk, left it to the council to determine “what he was to receive for his extraor- dinary pains in the Duke of Douglas’s affair” in 1746.106 Crail’s agent, David Forbes, similarly left two blank entries in his account of expenses, for his own and his clerk’s fee, and the council then negotiated appropriate sums.107 Clients them- selves willingly accepted this system, an indication of the extent to which they trusted, or felt obliged to trust, their law agent. When David Lindsay of Edzell left Scotland in 1727, he appointed Alexander Hamilton of Pencaitland younger ws as his factor, empowering him to deal with all debts, securities and other rights in Scotland. According to the standard formula, Hamilton was obliged to make “just compt and reckoning” whenever required, but he was to charge his expenses out of Lindsay’s income and receive “a reasonable gratification for his pains.”108
104 Sl, Report of committee on fees 28 May 1804, 26–27. 105 Ibid., 28. 106 Sba, Selkirk tcm, BS/1/6, 31 Jan. 1746. 107 St Andrews University Library [saul], Crail tcm, B10/10/3, 10 Aug. 1772. 108 Nrs, Hamilton of Pencaitland papers, GD3/14/2/84.
If the parties had difficulty agreeing what was reasonable, or finding a suitable sum to fill in a blank, then the matter sometimes had to be resolved at the hands of a third party arbiter, often an experienced practitioner in whose judgement of an appropriate fee both parties had confidence.109 Adjust ing a fee sometimes took some effort. In winding up the estate of Lord Milton, the agent William Alston was unhappy with the level of recompense offered on behalf of the heir by John Davidson ws. Alston regarded this as “so wide of my demand, that I think it can hardly be the subject of a reference”, and was unwilling to arbitrate until Davidson’s client personally confirmed the offer.110 This system, although followed throughout the eighteenth century, did nothing to encourage productivity on the part of the agent. He was allowed a certain fee for each session, regardless of how the case had proceeded. In 1758, for example, John Gordon of Auchanachy paid to his agent eight guineas in respect of
his Pains and Trouble…for two Winter and two Summer Sessions, con- sulting the Lawyers at different Times thereon, corresponding with Auchanachy [his client] and others, Incidents and Expences thereanent, Postages, &c.111
This sum matched the combined fees of the three advocates instructed to answer a reclaiming bill at the bar.112 In a case the following year, the agent fee of two guineas represented about ten per cent of the entire account in circum- stances where there was complaint about unnecessarily lengthy written pleadings.113 In another case in 1767, which lasted only a single session and had “met with the quickest Dispatch”, the agent’s fee of seven guineas was objected to as excessive because “many more troublesome Causes could be
109 Finlay, “Arbitration in Eighteenth-century Scotland,” Juridical Review (2011), 280. 110 Nls, Saltoun papers, ms 16755, fol. 29r. 111 Alsp, Craigie collection, vol. 52, no. 29, The Petition of Alexander Duke of Gordon and his Curators, 10 Aug. 1738, p. 3. 112 Alexander Lockhart received 4 guineas, the other two counsel two each. The total account amounted to just over £35 sterling. 113 Alsp, Arniston collection, vol. 50, no. 7, Answers for William Robertson Architect at Saw- mill of Leven to the Petition of John Gibson of Durie, Esq., 21 Dec. 1759.
114 Alsp, Dreghorn collection, vol. 1, no. 11, The Petition of James Boyle of Montgomerieston, Esq; and others, 20 June 1758, p. 6. 115 Sl, Report of committee on fees 28 May 1804, 28–29. 116 Alsp, Hamilton-Gordon 2nd collection, vol. 10, no. 65, The Petition of Edward Cutlar Writer in Edinburgh, 29 Jul. 1735, p. 5, per his counsel, Charles Areskine. 117 Alsp, Dreghorn collection, vol. 1, no. 12, Answers for John Cuming of Migarholm, M.D. pres- ent Provost, and other Magistrates of the Burgh of Irvine to the Petition of James Boyle and others, 6 Jul. 1758, p. 7. 118 The auditor was introduced by Act of Sederunt on 6 Feb. 1806: The Acts of Sederunt of the Lords of Council and Sederunt from the 11th July 1800 to 7th March 1810 (Edinburgh: Printed for Manners and Miller by G. Ramsay, 1815), 11–16. Prior to this, some accounts were informally referred to Robert Bell ws to be examined: sl, Report of committee on fees 28 May 1804, p. 33. 119 Alsp, Arniston collection, vol. 87, no. 3, The Petition of John Birtwhistle Drover in Skipton of Craven, in the county of York, 22 June 1767.
it is probably necessary to have a great deal of correspondence for infor- mation, laborious investigations of papers, many meetings with the party, and consultations with counsel; while in [a case] of an ordinary nature such would not be requisite.124
In fact, it was these preliminaries which took the time and effort and which justified the fee. Apart from being present during pleadings, every other stage of procedure in the Court of Session was routine and was generally dealt with by one of the agent’s clerks. The agent fee aside, the remainder of an agent’s profits arose from the fees permitted for drafting legal papers that varied according to the length of the summons, bill or other paper involved. Agents occasionally drew pleadings and charged for them, although they were signed by counsel before being given in to court. This practice was criticised in 1806 by the lords of session
120 Alsp, Arniston collection, vol. 152, no. 15, The Petition of Lieutenant Hunter lately employed in the Impress Servie at Dundee, 11 Feb 1783. 121 Ibid., p. 5. 122 Alsp, Hamilton-Gordon 1st collection, vol. 9, no. 10, The Petition of Thomas Eliot Writer in Edinburgh, 21 Feb. 1739, p. 2. The overall account was for £299 sterling, moderated by the lord ordinary to just over £195 and so the agent represented about 10 per cent of the total. It was subject to a petition to the Inner House to have it further reduced. 123 Sl, Report of committee on fees, 28 May 1804, p. 32. 124 Ibid.
Taxation of Costs
Prior to Guthrie’s appointment in 1806, costs were taxed either by the lord ordinary or by the judges in the Inner House (and sometimes by one then the other). The losing side often made a list of objections to their opponent’s expenses and the judges, as noted, adopted a rough and ready approach to reducing inflated accounts. It is clear that lawyers expected objections to be raised and probably inflated their account accordingly.127 To give two ran- dom examples in 1767, the lord ordinary in Gillenders v Birtwhistle reduced an account of £32 3s 4d to seventeen guineas, while in Dalrymple v Ramsay an account of over £207, excluding the agent’s fee, was reduced to £160 including the fee.128 In the latter case, more than £55 of the £93 of lawyers’ costs con- sisted of consultation fees, regarded as unpredented for a case that was only
125 nrs, Court of Session, books of sederunt, CS1/19, 6 Feb. 1806; Acts of Sederunt 1800–1810o, 14. 126 Discussed in Finlay, Community of the College of Justice, 165–6. 127 E.g. Montrose papers, GD220/5/337/5, 6a. 128 Alsp, Arniston collection, vol. 87, no. 3, The Petition of John Birtwhistle Drover in Skipton of Craven, in the county of York, 22 June 1767; Dreghorn collection, vol. 29 no. 17, Memorial for Charles Dalrymple of Orangefield defender against Mrs Christiana Ramsay, 25 Jul. 1767.
129 Sl, Report of committee on fees 28 May 1804, p. 30. 130 Aslp, Kilkerran collection, vol. 10, no. 56, The Petition of the Magistrates and Town Council of Selkirk, 30 Jul. 1744. 131 E.g. elca, Haddington tcm, HAD/2/1/2/14, fol. 116r. 132 Alsp, Craigie collection, vol. 48, no. 20, Minutes Hugh McLeod of Genies against Hary Allan Writer in Edinburgh, 19 Feb. 1757.
The expenses included a range of fees and also the cost of employing a clerk or amanueunsis to copy a document and a printer to print court papers.133 An agent might be ordered to pay the costs of attendance of his own witnesses.134 In the sheriff courts the practice might differ. The clerks of session in the Court of Session had no hand in modifying expenses. It was certified in 1767, however, that it was the constant practice in Edinburgh sheriff court, and had been beyond memory, that the sheriff clerk when extracting the decreet
fills up the Expences of Plea, in proportion to the Sum decerned for, and that it is only in particular Cases, where the Expences of Plea, (commonly awarded,) will not defray the Expence of Litigation, that an Account is given in to the Sheriff, who in such Case ascertains the Expences.135
Such latitude for the clerk in the sheriff court is entirely consistent with what is generally known of the office. In terms of sheriffs and their substitutes taxing of procurators’ costs, it is likely that not all were as strict as the lords of session.
Accounts
The accounts regularly rendered by writers to the signet and ordinary writers are discussed in more detail in the next chapter. They record the range of their activities which included the drafting of documents, the writing of letters, the collection of clients’ monies (which were often then lent out) and the payment of their debts, as well as involvement in conveyancing. Factoring in regard to local estates was particularly lucrative. In 1802 the Rev. Dr Andrew Hunter of Barjarg, for example, was charged a guinea by the Dumfries writers Thomas Goldie and Robert Threshie for “Agency Trouble & Correspondence” taken in his affairs, but eight guineas, during the same period, as a factor fee for collect- ing “and paying away” his rents.136
133 On printing court papers, see Warren McDougall, “Developing a marketplace for books” in Stephen W. Brown and Warren McDougall, ed. The Edinburgh History of the Book in Scotland (Edinburgh: Edinburgh University Press, 2012), vol. 2, 130. See generally, ibid, S.W. Brown and W. McDougall, “Introduction,” 15–17. 134 Alsp, Arniston collection, no. 4, Answers for Samuel Mitchelson senior clerk to the signet, 14 Dec. 1762, p. 5. 135 Alsp, Arniston collection, vol. 84, no. 23, Answers for Walter Ruddiman senior, and Company, Printers in Edinburgh to the Petition as above [i.e. William Taylor], 26 Jan. 1768, p. 13. 136 Nrs, Barjarg papers, GD78/237/1.
Attempts to recover what was owed to their clients occupied the time of many local law agents. In Galashiels, William Craig wrote to a correspondent about diligence he had entered into against James Anderson, in a neighbour- ing town, over a debt of ten shillings:
I called at Anderson on your fair day for said ten shill[ing]s which he said he could not pay that day. But after threatening him with a summonds he promised to pay it all tomorrow without fail.137
Craig arranged for his correspondent to receive the money and give a receipt for it, promising to visit and surrender to Anderson the letters of diligence he had taken out against him. As well as being paid for regular business activities, writers received a range of casual payments. In large transactions, such as the purchase of an estate, it was normal for the buyer to pay a gratuity or honorarium to the seller’s agent who had the trouble of writing out the necessary documents for the convey- ance. In 1740 David Couper sued the representatives of Andrew Barclay in respect of a payment of £50 which he claimed had been of this type.138 He alleged that Barclay, as factor for William Law, had been instructed by Law to pay Couper that sum following his successful purchase of the estate of Errol from the earl of Northesk in 1720. Barclay had allegedly taken credit for the payment in his account without informing Couper or making any payment to him. Couper only discovered his entitlement to the payment by chance, in 1735, and sought to recover it from Barclay and later his heirs. The question was argued on the basis of where the onus of proof lay. Barclay argued that the presumption was that the premium had been paid because it appeared in his accounts; Couper argued that Barclay, as factor, was obliged to take a receipt which would be the proper means of proof. By custom, no receipt was given for an advocate’s honorarium, but in these circumstances any competent factor would have ensured that a receipt was rendered. An occasional payment might be made in respect of extraordinary service by an agent in particular circumstances. George Smollet, agent for the Convention of Royal Burghs, submitted an account in July 1713 in respect of one year’s business. This included his normal salary, £240 Scots (£20 sterling), but also £333 6s 8d in respect of his “extraordinary pains.”139 The commissioner
137 Sba, D/47/71/16, William Craig to George Rodger, 28 Dec. 1784. 138 Alsp, Hamilton-Gordon, 1st collection, vol. 9, no. 37, The Petition of the Representatives of the deceast Andrew Barclay Writer in Edinburgh, 28 Feb. 1740. 139 Eca, crb, Sederunt book, SL30/1/1/9, fols. 16r-v.
Agents and Procurators’ Income
Most of the cases arising in the inferior courts were generally of considerably lower value than those that found their way into the central civil court. As a result, fees were modest and this was a particular ground of complaint when the attorney tax was introduced in 1785 because it did not take into account differences in income between practitioners in England and Scotland.141 In 1766, while Alexander Lockhart and Henry Dundas were earning two guinea fees for each of several consultations, a sheriff court procurator called Richardson received only sixteen shillings in the same case “for his fees and trouble during the time that the said process depended before the inferior court.”142 Inferior court procurators generally quoted their fees in shillings rather than guineas. 143 So even might some Court of Session practitioners. For example, the Edinburgh writer, James Edgar, claimed half a crown (2s 6d) in 1738 from each of three fleshers in Musselburgh “as his wages or reward” for managing a claim for them before the lords of session.144 It was open to sheriffs-depute to regulate fees.145 In Aberdeen in 1786, Alexander Elphinstone, noting that there was no settled rule ascertaining the fees to be charged by procurators or court officers to their employers and having advised with the Society of Advocates, introduced a table of fees.146 The fee for a summons in a civil action depended on the value of the claim (10 shillings if the claim amounted to £10 sterling or more but under £20, for example). The maximum
140 Ibid., fol. 17v. 141 Finlay, “Tax the Attornies,” 142–5, 148–9, 151, 164. 142 Alsp, Arniston collection, vol. 87, no. 3, Accompt of expences in the process at the instance of George Gillenders, p. 21 (see n. 128 above, which is part of the same process). This was probably William Richardson: Finlay, ed. arnp, i, no. 1283. 143 E.g. the procurator in a horning stated a fee of 5 shillings: nrs, Hume v Hislop, 1782, GD1/1417/1/29. 144 Elca, “Musselburgh book of claims, 1731–41,” MUS/4/5/90, no pagination, entry dated 16 Nov 1738. 145 The table of fees for clerks and officers agreed by sheriffs-depute in 1748 can be found in Anthony Macmillan, Forms of Writing used in Scotland (2nd ed., Edinburgh: Printed for Elphingston Balfour, 1786), 513–522. 146 Nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/67, fol. 310.
147 Ibid., fol. 312. 148 Ibid., fol. 316. 149 Alsp, Arniston collection, vol. 150, no. 13, Replies for James Kibble and others To the Answers for John Snodgrass, Sheriff-clerk of Renfrew, and Robert Walkinshaw, his depute, 1 Jan. 1783. 150 Acts of Sederunt 1553–1790, 410–13 (16 Mar. 1748). 151 Alsp, Replies for James Kibble and others, p. 14.
Their Procurator’s Opinion is the Rule of their Conduct, and his Demands the Measure of their Payment; and if it shall be held to be consistent with the Office and Duty of a Procurator to hearken to the Offers of the oppo- site Party, and upon a promise of Reward, to become Manager and Agent for their Interest; or if they are led to expect from Examples of this sort, that a slight and inconsiderable Censure will be the worst Consequence of being detected in any Act of exhorbitant Advantage taken.155
The tables of fees inposed in inferior courts were not generous but, according to the writers to the signet in 1804, country writers were in a better position
152 Ibid., Duplies for John Snodgrass, sheriff-clerk of Renfrew, and Robert Walkinshaw, his depute, 29 Jan. 1783, pp. 27–9. 153 Ibid, p. 17. 154 Nrs, Papers of the WS Society, Memorial for the Society of Solicitors before the Commissary Sheriff and City Courts of Edinburgh, 1792, GD495/48/1/10. 155 Alsp, Miscellaneous collection, series 5, vol. 4, no. 1, Answers for John French Procurator- fiscal to the Sheriff-court of Aberdeen to the Petition of James Petrie Advocate in Aberdeen, 9 Jul. 1754, p. 12.
Imo, That few can write four Pages an Hour; and to write twelve Hours in a day would in a short Time break the most robust Constitution. 2do, No Writer in Town can give constant Employment in the copying Way for six Hours in a Day. The Pursuer’s Claim against the Defender comes to little more than a Page and a half in the Day.158
The truth probably lies somewhere between these two estimates. Local procurators in the shires were not chained to a desk and might have to attend a range of different courts, not all of which were necessarily located in
156 Sl, Report of committee on fees 28 May 1804, p. 21. 157 Nrs, Edinburgh commissary court, CC8/6/981, “The Petition of John Anderson, writer in Glasgow”, n.d. [1793], p. 6. 158 Alsp, Elchies collection, vol. 14, no. 60, Petition and Answers for William Ruthven Writer in Edinburgh to the Petition of Mr David Couper Writer there, 28 Nov. 1743, p. 7.
159 Nrs, Sheriff court of Cromarty, SC24/1/1, 4 Feb. 1801. 160 Nrs, Letterbook of Duncan Campbell, GD1/205/6, ii, fol. 97. 161 Nrs, Campbell of Balliveolan papers, GD13/91. 162 Nrs, Fraser-Mackintosh collection, GD128/41/4, 8 Nov. 1790. 163 Ibid., GD128/41/4, 15 Jul. 1790. 164 Nrs, Commissary of Dunkeld, Miscellaneous papers, CC7/18/3. 165 Nrs, Commissary of Edinburgh, Register of testaments, C8/8/89, fol. 707.
Murrison was one of several partners in a soap manufactury.166 Alexander Cunningham ws found himself embroiled in a lawsuit in 1767 as a partner in a series of joint ventures with the late Edinburgh merchant, Michael Ancrum, in Madeira and Jamaica.167 If they were successful in the law, writ- ers moved into other areas of employment. George Douglas, for example, gave up his profession in order to enter a co-partnery with the printers Martin and Wotherspoon in Edinburgh in 1765 and begin a career as a paper manufacturer.168
Messengers and Their Income
Messengers-at-arms generally had a poor reputation for being slow and untrustworthy; debt collectors (which is effectively what they were) have, how- ever, rarely enjoyed a high reputation.169 There are examples of messengers forging captions (warrants for imprisonment) in order to extort money from vulnerable victims—being in the custody of a messenger was “an equivalent to imprisonment”—when the law clearly prohibited them from taking payment from anyone other than the creditors who employed them.170 While some messengers were writers or notaries, and some combined the office with that of procurator, some legal societies excluded from their ranks anyone who had ever held the office of messenger.171 In 1790, three members of the Faculty of Procurators in Glasgow objected when the commissary substitute
166 Alsp, Miscellaneous collection, ser. 7, vol. 6 (1785–6), Answers for James Morison, late prin- cipal Clerk in the Annexed Estates Office, Andrew Murison, Writer in Edinburgh, and Anr to the Petition of William Allardes, 2 Feb. 1786, p. 1. 167 Alsp, Swinton collection, vol. 8, no. 9, Memorial for Alexander Cunynghame clerk to the Signet Against The creditors of the deceased Michael Ancrum, 3 Mar. 1767. 168 Alsp, Arniston collection, vol. 89, no. 24, The Petition of George Douglas, Paper Manufacturer at Giffordhall, 2 Mar. 1771. 169 Like notaries (see Chapter Eleven), messengers had their handbook. In this case it was Alexander Frazer, A Treatise on the Office of a Messenger, as now practised in Scotland (Edinburgh: Printed by Thomas and Walter Ruddiman, 1753). 170 E.g. alsp, Miscellaneous collection, ser. 5, vol. 4, no. 1., Answers for John French Procurator- fiscal to the Sheriff-court of Aberdeen, 9 Jul. 1754, p. 1; ibid., ser. 7., vol. 6 (1785–6), Petition and Complaint of John Borland, Merchant in Glasgow, 4 Feb 1786, p. 3; Acts of Sederunt 1553–1790, 318–9. The quotation is from alsp, Arniston collection, vol. 84, no. 2, The Petition of Jane Scott, 25 Nov. 1767, p. 7. 171 Nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/58, fol. 201 (1776, reg 18); acaa, Society of Advocates in Aberdeen, Sederunt book 1799–1819, D528/2/2, Regulations and bye-laws, 19 June 1799, reg. 28.
172 Rfpg, Sederunt book 1761–1796, fol. 191. 173 Nrs, Court of Session, Bill Chamber, CS271/71484, Memorial for hm Sheriff-depute of the County of Ayrshire against Alexander Jamie and others, 28 June 1813, p. 11. 174 Such examination was required by a 1592 Act of Parliament: rps, 1592/4/47, Concerning the office of lyoun king of armes and his brether herauldis. E.g., the admission of Alexander McAlester, writer in Campbeltown, by the Lord Lyon, John Campbell, in 1757: nrs, SC54/22/9/1. 175 Rps, 1594/4/29, Act Anent souirties for officiaris off armes. 176 Rps, 1587/7/40, Act for reformatioun of the extraordiner nowmer and monyfauld abuses of officiaris of armes. alsp, Elchies collection, vol. 15, no. 9, Answers for Alexander Brodie of Brodie Lord Lyon To the Bull of Suspension presented by James Thomson and Ors, 9 Jul. 1744, p. 1. 177 Alsp, Craigie collection, vol. 46, no 5, The Petition and Complaint of John Farquar, etc, 2 Feb. 1757.
Pactum de quota litis
A final issue to be addressed is an ethical one but, as it bore directly on the practice relating to incomes for advocates and writers it is convenient to dis- cuss it in this chapter. The pactum de quota litis was a contingency fee arrange- ment whereby a lawyer agreed to act for his client in return for a fraction of any sum awarded, therefore his fee depended on the outcome. This type of arrange- ment was, under the influence of Roman law, absolutely prohibited. The emperor Constantine thought such arrangements odious and reprehensible.184
178 Nrs, Correspondence of Campbell McIntosh writer in Inverness, GD128/41/5, 4 Jun. 1790. The letter does not say why Ogilvie was being sought. For another example, see below, page 172??. 179 Nrs, RH15/76/9/16, fo 7. Each messenger carried a wand, a blazon, and a book of injunc- tions; equivalent to the notary’s pen, penner and protocol book. 180 E.g. Account of William Pagan and Co. to Thomas Grahame, writer in Glasgow, 1767, gca, T-MJ/427/139. 181 Alsp, Memorial for Thomas Henderson, etc against Richard Tosh messenger in Kirkcaldy, 20 Feb. 1767, Swinton collection, vol. 8, no. 6b. 182 Rps, 1592/4/47, Concerning the office of lyoun king of armes etc. For an example: alsp, Kames Dictionary collection, vol. 7, no. 702. On the regulations, see the Act of Sederunt of 11 Mar. 1772: Acts of Sederunt, 571–5. 183 Rps, 1685/4/64, Act anent messengers’ fees. 184 Cj 2.6.5.
The early modern jurist Johannes Wissenbach (1607–1665) preferred to use Quintilian’s term to describe the arrangement, the pactio pirataca (piratical pact) because, as he told his students, he thought the phrase pactum de quota litis less elegant.185 Not every agreement with a client was prohibited. For instance, a “no win no fee” arrangement was acceptable, provided the fee charged was not unreasonable.186 According to Giovanni de Amicis (1463–1520), an Isernian jurist who taught in Naples in the early sixteenth century, the pactum de quota litis was contra bonos mores because it represented an inducement to an advocate to fail in his duty and to cheat in order to win.187 Viscount Stair (1619–1695) was strongly condemnatory, whether the pactum consisted of a “naked paction or promise, or a mutual contract”, highlighting this as the major exception to the enforce- ability of contracts in Scots law.188 In the seventeenth-century case law, there was some debate over whether the prohibition applied only to advocates or included writers, although it was clearly accepted that it applied to both.189 One reason for the prohibition was inequality of bargaining power.190 The client was in the hands of the lawyer and it was easy to take advantage of him in a way similar to the situation in which a plea was bought from an unsuspect- ing litigant. The sixteenth century Dutch lawyer van Bourits compared the advocate to a physician, arguing that in extreme circumstances a client, like a dying man, would be willing to surrender anything in order to be saved.191 If such an arrangement did exist, then it would be in the lawyer’s interests to set- tle the case quickly. He was paid purely based on the result, not for the time and effort expended in achieving it. On the other hand, the lawyer’s interest in the result may influence the handling of the case; a quick settlement for a reduced sum might suit the lawyer but might not be in the interests of the client.
185 Johannes Jacobus Wissenbach, In libros vi priores Codicis Justiniani repetitae praelectionis (2 vols, Franeker: Joannes Arcerius, 1660–1663), 2.5.6.2. 186 Guido Pape, Decisiones Magistri Guidonis pape [Lyon: Jacques Huguetan and Jacques Myt, 1511], quaestio cij. Paulus Laymann, Theologia Moralis in v lib. partita (Lyon: Antoine de la Garde, 1643), 3.4.26.10. 187 Joannes de Amicis, Consilia (Venice: Vincent, 1577), Consilium cxlviii, n. 7: “quia inuitat aduocatum ad delinquendum, hoc est ad calumniandum, per calumniam vincendum.” 188 Stair, Inst., 1.10.8. My thanks to Professor Hector MacQueen for drawing this to my attention. 189 Hume v Nisbet, 24 Feb. 1675, Mor. 9496. 190 Johannes Brunnemann, Commentarius in duodecim libros Codicis Justianei (Leipzig: Johann Christoph Tarnow, 1688), 2.9.5.2. 191 Van Bourits (Bouricius), De Officio Advocati, cap. xliv (p. 302). He equated “timorem litis” with “timorem mortis.”
It had been argued in Ruthven v Weir in 1680 that the 1594 statute concerning the buying of pleas by lawyers and judges excluded in Scotland “the custom of other nations de quota litis”, but this argument was rejected.192 The offence of buying pleas outlawed the fraudulent practice of a lawyer purchasing, for a modest sum, his client’s right to prosecute a claim and then prosecuting that right at his own instance for personal gain.193 It was rightly regarded as a sepa- rate matter. Similarly, an agreement that was made lis erat sopita (after a plea was ended and no longer depending before the court) did not fall within the prohibition against the pactum de quota litis because it did not, at that stage, influence the lawyer’s conduct.194 According to Robert Craigie, in terms mindful of Stair, one reason for con- demning such pacts applied with the same, if not greater, force against an agent as an advocate, and that was the “Danger of their stirring up Pleas, and managing them with too much Address and Eagerness, to the great Vexation and Disquiet of the Lieges.”195 In other words, these agreements tempted the lawyer to depart from his “disinterested” role.196 In the case concerned, it was alleged that Archibald Stewart, a writer who worked as an extractor in the office of William Hall, one of the clerks of session, had interfered at a late stage in a bankruptcy process. He had claimed that the major creditor could be eliminated, to the benefit of the remaining creditors, and sought a share of the profits for his trouble should that creditor’s interest be reduced (that is, rendered void). It was also alleged against Stewart that he had purchased a plea still in dependence before the court. Stewart, for his side, argued that he had been unjustly accused. He was the husband of one of the daughters of the common debtor and alleged that it was in that capacity that he was involved in the case and not as a law agent. By definition, therefore, there could be no illegality because for a pact to be unlawful it had to be made by
Lawiers or practitioners in the Law with such Persons as they have taken under their Clientship, and who may yield to disadvantageous Bargains
192 Ruthven v Weir, 23 Jun. 1680, Mor. 9498. 193 Rps, 1594/4/37, Act anent the bying of landis and possessionis dependand in pley be jugeis or memberis of courtis. See also Finlay, “Ethics, etiquette and the earl modern Scots advo- cate,” 162 n. 88, 168. 194 Hume v Nisbet, 24 Feb. 1675, Mor. 9496–7. 195 Alsp, Miscellaneous collection, vol. 17 (1737–43), no. 126, The Petition and Complaint of John, Earl of Loudon, Adam Baird of Cowdam and of the haill other Creditors of the deceast Adam Aird of Catrine, 22 June 1737, p. 4. 196 On this theme, see Dietrich Rueschemeyer, Lawyers and their Society (Harvard: harvard University Press, 1973), 133–4. See also below, Chapter 5.
with those in whom they confide, lest otherwise their Interest should be betrayed.197
Stewart further claimed that no plea had been purchased because he was to receive nothing but his expenses for his assistance and these were to be reim- bursed by the children collectively from any sum they recovered.198 There are certainly clearer examples of unlawful pacts being made in Scotland, although sometimes the concept was merely discussed in passing. Andrew Mcdouall, arguing a case in 1735, mentioned the pact simply to con- trast it with a pension voluntarily given. In his submission, the pact was pro- hibited to advocates and agents alike, so that “all undue Measures in carrying on of Processes may be prevented”; the pension, however, was routinely accepted “by Advocates of the most shining characters.”199 George Forbes, an agent in the College of Justice, was found to have entered into a pactum de quota litis in 1774. It was reduced but Forbes was only suspended between July and the beginning of the winter session in November, a lenient sentence that reflected the surprising conclusion of the judges that he had erred through “ignorance rather than any criminal design.”200 In modern practice, the pactum de quota litis is not accepted in Scotland or, indeed, in Europe. Article 3.3 of the ccbe’s Code of Conduct for Lawyers in the European Union prohibits lawyers from entering into contingency fee arrange- ments. This is reflected in the rules of the Scottish bar. Such arrangements are, however, found elsewhere, notably in the United States.
Conclusion
In 1288 Adam Urry, a clerk in Glasgow diocese, died repenting the fact that he had spent too little time on the care of souls and too much seeking to make money through exploiting his knowledge of Roman and canon law.201 In the
197 Alsp, Miscellaneous collection, vol. 17 (1737–43), no. 126, Answers for James, Christian and Helen Airds…and Archibald Stewart Writer in Edinburgh, Husband to the said Christian, for his Interest, n.d., p. 3. The authority offered for this was cj 2.6.6. 198 Expenses were permitted by D.2.14.53. 199 Alsp, Hamilton-Gordon 2nd collection, vol. 10, no. 65, Answers for Edward Cutlar Writer in Edinburgh To the Petition of Sir George Maxwell, 22 Jul. 1735, p. 5. Mcdouall, in his later writing, condemned the pactum in traditional terms: Bankton, Inst., 1.326.10. 200 Nrs, Court of Session, books of sederunt, CS1/15, fol. 161v. 201 Peter Stein, The Character and Influence of the Roman Civil Law (London: Hambledon, 1988), 292–3.
that the profession of an Advocate in Scotland is a liberal profession, in which, while no action for emolument can be maintained, the parties, who resort to the advice and professional skills of the individual mem- bers, rely in every thing on the character and honour of the person whom they consult and employ.202
This rather idealised view of the profession is based on the same understand- ing as that of William Grant in 1743 and is in keeping with a similar vision exhibited by Sir George Mackenzie in his famous oration at the opening of the Advocates’ Library in 1689.203 Lawyers were human and they were as likely to be motivated by money as any other commercially minded individuals in urban or rural Scotland. As Mackenzie indicated, however, it was merit, not foolish flattery, which was the measure of their success and lawyers were the architects of their of their own renown as also of their fortune.204 The tradition of the honorarium was matched by the vagueness of the agent fee and also by the rewards sometimes given to writers for drafting particular documents. In 1760, Lord Milton’s agent, John Watson ws, made a suggestion as to what Milton, following an adjudication of property belonging to one of his debtors, might pay the debtor’s doer, the writer Thomas Cockburn, for drafting the disposition.
If I may take the liberty to give my opinion, I think 2 Guineas should be given Mr Cockburn with half a Guinea to his clerk besides stampt paper. But this is to be no rule to your Lordship.205
202 Al, “Faculty of Advocates, Minute Book, 1823–29”, FR6, fols. 274–5. 203 Sir George Mackenzie of Rosehaugh, Oratio Inauguralis In Aperienda Jurisconsultorum Biblioteca, ed. John W. Cairns and Alex M. Cain, transl. J.H. Loudon (Edinburgh: Butterworths, 1989). 204 Ibid, 49, 63. 205 Nls, Saltoun papers, ms 16717, fol. 57r.
To leave the matter open—with a blank entry left in the account for the fee— might seem shameless and opportunistic, but it was regarded, in an honour- able profession, as being quite acceptable. Those fortunate and skilled enough to make substantial sums from the law could afford to build or renew substantial estates to complement their Edinburgh houses. Braco’s Duff House had its counterpart amongst lawyers, with Arniston House in Midlothian and Tinwald House in Dumfriesshire, also built to designs by William Adam.206 To gain such rewards, however, skill and good fortune had to be allied to a good reputation for business. Even for men at the top of the profession, their financial reach did not always extend as far as they hoped. Indeed, Robert Dundas, was himself unable to complete Arniston House in conformity with Adam’s original plan due to lack of funds.207 The management of money, their own and that of many of their clients, was fundamental to success for many lawyers. Negotiating business involved com- plexity and the maintenance of liquidity: within five days in 1752, for example, John Mackenzie “retired” (that is, honoured) four bills drawn on him by his client, Captain John Sutherland, paying out a total of £290 to creditors includ- ing merchants in Thurso and Wick.208 Controlling land deals, dictating strat- egy, maintaining funds and overseeing general business was a management skill for a writer that was fully as important as competence in managing, writ- ing and presenting legal argumetns was for procurators and advocates. The next chapter focuses on this broad issue of management.
206 Gifford, William Adam, 100–106, 116–7; Sanderson, Robert Adam and Scotland, 9. 207 J. Knox, The Scottish Country House (London: Thames & Hudson, 2012), 78–9. 208 Nls, Delvine papers, ms 1195, fol. 17.
There is no Mortal of any Experience in Business, who does not know with how little Accuracy Matters are managed before most inferior Courts.1 Alexander Lockhart, 1739
This chapter looks at how lawyers managed certain aspects of their business and considers the related question of professional negligence. The preoccupa- tions of the eighteenth century were to be echoed in the nineteenth: concerns about irregular practitioners abounded, transparency was demanded, so that clerks and apprentices operated for their masters and not independently under cover of his name, and business models developed, so that the firm or partnership came to be a normalised trait of the profession by the middle of the nineteenth century. The eighteenth century also saw the development of a more profession- alised attitude to the administration of justice in the localities. This was spurred in part by the Abolition of Heritable Jurisdictions (Scotland) Act 1747 in that every sheriffdom, no matter how remote, had an advocate, a lawyer of distinction (at least in theory), as sheriff-depute. Such a royal officer representing the crown set an example for lesser magistrates. This was also true of the common regulations governing their courts which the sheriffs-depute established in 1748, even if, in the years that followed, sher- iff court regulations developed independently and diverged to suit local conditions. The sources can only give an incomplete picture because not all court books survive. In any case, it would be challenging to attempt to measure the amount of litigation or other business undertaken locally by lawyers across the century. Central court business certainly increased in the latter half of the century and it is highly likely that the level of business across the inferior courts also rose substantially. Lawyers were increasingly busy as demands grew for their ser- vices and, as a result, the number of lawyers, at all levels, increased in the decades leading up to the end of the century. That pattern continued thereafter
1 alsp, Answers for John Barr Mason and Wright in Rutherglen and William Spens Writer there, 16 Feb. 1739, Miscellaneous collection, vol. 17 (1739–1742), no. 76, p. 4.
© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004294943_005
Business
Letterbooks, ledgers, daybooks and other sources indicate that successful writers led busy professional lives. Their main activities consisted of drafting documents: drawing schedules, instruments, bonds of cautionry, renunciations, contracts of sale, powers of attorney, contracts of marriage, precepts and instruments of sasine, bonds of relief, affidavits, newspaper advertisements—the list of docu- ments, legal or otherwise, necessary in business or family life was very long. Where litigation was in hand, procurators had to draft memorials, libels, answers and other court papers. Successful writers also had to manage their offices. Arrangements might have to be made to send notaries, along with suitable witnesses, to take infeft- ment of property on behalf of clients. A clerk might need to be assigned to attend court, or to inspect property. The Glasgow firm of Mitchell and Grahame in August 1800, charged ten shillings and six pence for the attendance of one of its clerks in the sheriff court and in writing to Greenock, in a bid to have James McIndoe liberated from a naval pressgang.5 Mitchell & Graham’s daybook for the year 1800 survives. It is a substantial volume that details the wide activities of their office, a mixture of routine mat- ters and one-off activities, against all of which is marked a fee. Thus Andrew
2 nrs, CS230-G-11-3, Duplies for Daniel Hamilton, Esq. Sheriff-substitute of Lanarkshire to the Replies for the Dean and Faculty of Procurators in Glasgow, 22 Feb. 1816, pp. 23–24. The number of cases in 1875 was only 694: Journal of Jurisprudence 21 (1877): 279. 3 See below, page 358??. 4 gul, Spec. Coll., Mu16-h.27, Form of Process in the Burgh Courts of the City of Glasgow (Glasgow: J. Starke, 1820). 5 gca, Records of Messrs Mitchells, Johnston & Co. solicitors, Glasgow, T-MJ/13, fol. 200. Mitchell had been booked as apprentice to Robert Grahame on 5 Sept. 1792: rfpg, Sederunt book 1761–1796, fol. 209. He was admitted a procurator on 31 Aug. 1797: Ibid., Sederunt book 1796–1832, fol. 39.
Mitchell, on 17 March, personally went to inspect the operations of some workmen, “in throwing rubbish into the Kelvin and thereby turning the course of the river” onto the grounds of his client, William Gillespie.6 Mitchell also notes his trouble in attending the dean of guild court for clients on 18 September; as acting as clerk in an arbitration in December, and a number of other occasions when he had to leave the office.7 One of the firm’s clients was the Thistle Bank and, in March, diets of precognition had to be attended on its behalf in a case of forgery.8 On the other hand, the firm charged two guineas for drawing up a marriage contract, on four sheets of paper, on behalf of James Gillespie.9 Fee books and notebooks indicate the ways in which earlier agents man- aged their cash-in-hand. Small sums were borrowed or lent out for short peri- ods to other practitioners. The writer John Mair kept a small book containing notes of such loans and their repayment. Thus he recorded on 6 August 1761 that he had borrowed £6 sterling in cash from a fellow Edinburgh writer, John White, which he repaid on 21 August.10 On 14 March 1750 he lent £5 sterling to another writer, William Elliot, which was paid back to him on 20 March; simi- larly £1 lent to the writer James Leslie in 1769 was repaid a couple of weeks later.11 Generally, he lent modest sums in cash, often no more than a few shil- lings. Larger sums were transferred by promissory note or bill of exchange, with repayment anticipated either on demand or at a short date, normally three or four months. Immediate debts with other practitioners, however, might by set off against existing business accounts which he held with them. Consider the following entries:
22d April 1747 I owe Duncan McDonald writer in Edin[bu]r[gh] per acco[mp]t £1:10:8 Eo die I have indorsed to him James Crichton’s Bill to me for £1-0-6 and drawn a bill on Peter Brown writer payable to him for £0-11-6 26 May 1747: Neither James Crichton nor Peter Brown having answered, I have this day payed Duncan McDonald a Guinea and a half, in full of what I owed him; and he has reindorsed to me James Crichton’s
6 Ibid., fol. 64. 7 Ibid, fols. 246, 320. He charged 7 s 6d for two hours’ work as clerk to the submission at the meeting of arbiters. 8 Ibid., fol. 55. 9 Ibid., fol. 247. 10 nrs, Memorandum book of John Muir, writer in Edinburgh, RH15/134, fol. 59. 11 Ibid., fols. 21, 95.
note, but I have lett him keep Peter Brown’s, in trust, in order to pursue for it. 4th July 1747: Received the 11sh 6d from Peter Brown.12
Crichton, Brown and McDonald were all writers with whom Mair regularly engaged in business.13 A significant part of a writer’s business was handling clients’ money.14 Agents took very seriously the need to obtain good security for money which was to be lent out at interest. Andrew Mitchell was happy to declare in one case that to his knowledge a particular company was good for ten times the amount it was to grant security for; indeed, he looked upon it “to that extent as safe as the bank.”15 In taking soundings, agents might use fellow practitioners as a form of credit reference agency. Harry Maule in 1709 had to advise his client, Lord Grange, on the investment of a large sum which it was intended to lend to the earl of Leven. Making sure that Leven could offer sufficient security was a delicate matter. Leven owned several estates into which Maule inquired. Despite need- ing liquidity, Leven was not willing to grant security in all of his lands (this would have hampered him potentially in arranging future borrowings). Nor, as Maule reported, would he take “the searching of the Registers well nor will- ingly be at the charge therof.”16 Too public a scrutiny, on such occasions, risked the borrower’s reputation; yet Maule had a duty to the lender. When Leven offered the barony of Carden in Fife as security, which he had purchased at a public roup (auction), Maule spoke to John Thomson ws who had been a creditor on that estate. Thomson had been paid off and thought that the other creditors had too; he had also had occasion to search the registers in respect of another estate Leven had pur- chased. When he looked into a third estate owned by Leven, Maule was informed that the lands were “liferented and tis generally thought that the E[arl] of Leven’s title to them is not very clear so that they are not to be medled with.”17 Maule wanted to examine the discharges and reunciations by prior creditors to make sure that Carden was good security; in the end, he reported
12 Ibid., fol. 7r. 13 For McDonald, who was also a notary public, see Finlay, ed. arnp, i, no. 1409. 14 See Finlay, Community of the College of Justice, 173–76. 15 gca, Letterbook of Graham and Mitchell, law agents, 1800, T-MJ/47, fol. 147. Such state- ments are relative. Banks were no safer then than they seem to be today. 16 nrs, Mar and Kellie papers, GD124/15/962/1. 17 Ibid., GD124/15/962/3.
Clearance
Agents periodically issued statements of account in which they itemised the charge and discharge. This account would be examined at “clearance” with the client, vouchers and receipts produced, and any differences adjusted. In return for payment, typically by bill of exchange, the vouchers and receipts were delivered to the client and each discharged the other of any further obligation in respect of the items agreed in the account. As John Mackenzie ws advised William Graham, “I presume you put all my letters together which acknowl- edge the receipt of money, that they may be exchanged at our Clearances.”19 The result of a clearance would normally be a written and witnessed discharge subscribed by the parties. Such meetings were held regularly but not necessary every year. In Wilson v Lainshaw’s creditors in 1780, counsel pointed to the fact that in four years nearly £1000 sterling had been paid to an agent in respect of ongoing litigation.20 In that case the agent, William Wilson ws, still had two accounts outstanding, amounting to £261, that ran for the periods 18 February 1776–24 February 1777 and 27 February 1777 to 25 June 1779, suggesting that in this case annual clear- ances were not a fixed pattern.21 In other cases, two years or longer might pass until accounts were cleared.22 When the agent-client relationship ended, there would be what was referred to as a “final clearance”, such as was noted earlier between Adam Mercer and the earl of Airlie in 1734.23 Accounts could include payments for all kinds of domestic activities. John Tait ws, for example, paid for his client’s subscriptions to the Musical Society of Edinburgh and also paid for insuring his property, items which he then charged in his account.24 Lawyers in Edinburgh made extensive use of the ser- vices of printers. William Taylor, a writer there, employed Walter Ruddiman
18 Ibid., GD124/15/962/5. 19 nls, Delvine papers, ms 10858, fol. 41. 20 alsp, Arniston collection, vol. 42, no. 16, Answers for The Creditors on the Estate of Lainshaw, 13 Jul. 1780, p. 3. 21 Ibid., Petition of William Wilson Writer to the Signet, 30 June 1780, p. 1. 22 E.g. Gordon Castle papers, GD44/51/417/1 (William Fraser ws and Alexander, duke of Gordon, 16 May 1766 to 15 Mar. 1768). 23 See above, page 64. 24 nrs, Campbell ws papers, GD253/140/7.
Hypothec (right of retention)
When it came to settling accounts, lawyers often held a trump card. This was the right to retain possession of a client’s papers in security of payment of their fees (in modern law, this is a general lien, but in the eighteenth century it was referred to universally, and incorrectly, as a “hypotheck”).26 In 1714 Alexander Glass ws, in asserting the right, felt no need to cite any precedents because exercise of the privilege “occurs almost every Day.”27 Such reticence is normally a sign of lack of authority. Sure enough, when in 1772 Robert Syme ws exer- cised the same right against John Finlay, who had not paid a farthing for the management of processes undertaken a decade earlier, the court reviewed the authorities and found them rather scant. However, the judges were uniformly in favour of the agent’s right to retain documents until he was paid.28 Retention of a client’s papers was an important bargaining chip for an agent but it also raised a number of issues. If the client was bankrupt, the agent’s claim was preferred to any heritable creditor, even if the latter’s security was earlier in date.29 The papers in his possession had to be protected by the agent in so far as he was able, but this could not impose any absolute duty. The expec- tation was that all reasonable steps would be taken to preserve any charters or documents in a writer’s chamber and the hypothec provided a clear incentive. It may also explain, from the clients’ perspective, why they generally preferred to retain their own important papers in their charter chests, sending them to agents only when necessary (bonds often lay in writers’ offices when, for exam- ple, they founded diligence procedures to be carried out against creditors).30
25 alsp, Arniston collection, vol. 84, no. 23, The Petition of William Taylor, 22 Dec. 1767. 26 On the history of lien, see Andrew J.M. Steven, Pledge and Lien (Edinburgh: Edinburgh Legal Education Trust, 2008), 140–155. 27 alsp, Forbes collection, vol. 3, The Petition of Alexander Glass Writer to the Signet, 21 Jan. 1714, fol. 2547. 28 alsp, Arniston collection, vol, 109, no. 23, The Petition of Robert Sym Clerk to the Signet, 16 Dec. 1772. The earliest reported Scots case was in 1697: Steven, Pledge and Lien, 140. 29 Ranking of Hamilton of Provenhall’s Creditors, 9 Aug. 1781, Mor. 6253. 30 E.g. alsp, Hamilton-Gordon 1st collection, vol. 38, no. 7, The Petition of Dame Marjory Thomson and others, 20 Nov. 1721, p. 1. There were exceptions, e.g. the Edinburgh writer
An experienced agent would therefore endeavour to acquire a good idea of the contents of his major clients’ charter chests and, in some cases, went to the trouble of having an inventory made. These could extend to dozens of documents.31 If papers went missing, problems inevitably arose because an agent did not normally provide a receipt when given papers by his client. In a case in 1730, it was even suggested that the default presumption should be that lawyers had returned any papers to the client that had once been in their possession, and that even if a receipt had been given for papers this did no more than oblige the lawyer “to purge himself by Oath that he had not fraudulently put them away.”32 This quote was taken from a fairly recent authority, Blair v Cunningham in 1713, from which it also appears that papers routinely passed from clients to their advocates without receipts.33 Rather than a receipt drawn in formal writ- ing, the Blair case concerned an inventory of deeds to which the advocate had added a brief statement and his own (unwitnessed) subscription. When an agent-client relationship broke down, and a new agent was employed, difficulties often emerged in getting hold of papers. Hew Somerville ws, for instance, was accused by George Rutherford in 1737 of imposing upon him “an unprecedented and unnecessary Hardship” in recovering the papers contained within two processes, even though his account had been paid in full.34 Yet Somerville’s caution was justified. In borrowing up the processes some years before, his clerk had given a receipt to the clerks of session who had the right thereby to bring letters of caption against Somerville to recover them. Before surrendering the papers, Somerville demanded that the receipt be can- celled in the clerks’ chamber. He refused to accept a separate receipt from Rutherford because that provided doubtful protection. His only security against the clerks was physical possession of the processes. Rutherford’s coun- ter-receipt might be lost or destroyed, even years later, while his servant’s receipt might survive to stand against him. Rutherford’s petition, signed by the
Walter Ferguson had the late earl of Sutherland’s charter chest in his custody in 1753: nls, Delvine papers, ms 1197, fol. 73. 31 E.g. nrs, Register of Deeds, RD2/168, fols. 362–66. Inventory of the writs of Greenlaw, disponsed to Sir Thomas Young of Rosebank lists 85 deeds, dating from 1610 to 1708; the inventory of deeds of Thomas Gordon consisted of 240 deeds dating from 1621–1688: nls, Delvine papers, ms 1222, fol. 107. 32 alsp, Elchies collection, vol. 3, no. 91, The Petition of David Ross of Inverchasley, 11 Feb. 1730, p. 4. 33 Mor. 357. 34 alsp, Miscellaneous collection, ser 17, (vol. 1737–1743) no. 17, The Petition and Complaint of George Rutherfoord [sic] of Fairningtoun against Hew Somervel ws, 7 Feb. 1737.
Writers and Agents, who either advance Money, or furnish their own Trouble in Expectation of a Gratuity, rely upon their Employer’s Faith. So far the Practice has gone, as to give them a Right of detaining such of their Employer’s Writings as came into their Hands in the Course of their Employment, until their Accompt is paid: But to extend this Privilege, so as to give them a Hypotheck or real Lying [Lien] upon their Employer’s
35 Ibid., The Petition by way of Answer for Hugh Somervel of Inverteill ws, 17 Feb. 1737, p.2. 36 Bankton, Inst., i.17.15; Erskine, Principles of the Law of Scotland (Edinburgh: Hamilton, Balfour and Neill, 1754), iii.1.13; 27 Nov 1705, Ayton v Colvil, Mor. 6247. 37 alsp, Forbes collection, vol. 3, The Petition of Alexander Glass ws, fol. 2547. 38 alsp, Arniston collection, vol. 109, no. 26, The Petition of Robert Sym Clerk to the Signet, 16 Dec. 1772 (see handwritten note); reported in Mor. 6250. Cf. Stewart and others, Petrs, 29 Jan. 1742, Mor. 6248. 39 Inhibition in this context was an order (publicly intimated and registered in a local regis- ter of inhibitions) prohibiting a party from contracting debt to the prejudice of the credi- tor who had sought the inhibition: rps 1672/5/60, Act anent the regulation of the judicatories, s. 32; Erskine, Principles, ii.11.2.
Estate, whether heritable or moveable, is a Novelty destitute of all Manner of Foundation.40
In other words, an agent who lent his client money, knowing of his indebted- ness, did so “upon his Peril” and was an unsecured creditor in respect of that loan; his right to retain documents was exercisable only in respect of fees due for legal work carried out.41 In 1779, the Inner House, reversing Lord Kennet, held in another case that the right of retention prevailed over secured credi- tors, even in circumstances where the estate was more than exhausted by the crystallisation of secured claims prior to the period of the agent’s account.42 Where the size of the agent’s account was clearly ascertained, rendering the claim illiquid, then his right to insist on payment before giving up possession of any papers was absolute. An attempt was made in the unreported case of Cunningham v Bell in 1787 to argue that where the final account was disputed, and the sum to be paid remained liquid (i.e. uncertain), the court might equi- tably order papers to be surrendered to the client in exchange for satisfactory personal security.43 This case arose after Robert Bell ws had agreed to assist in the executry of “his late brother by profession” John Haldane, who for many years had been a Court of Session agent.44 Bell was then embroiled in a dispute with Haldane’s widow, Beatrix Cunningham, who believed her husband had died owning a considerable surplus of assets. She and her advisers (including the advocate Robert Mackintosh) questioned Bell’s plan of management of the estate which, as Bell argued, was significantly indebted.
40 alsp, Kilkerran collection, vol. 18, no. 37, Memorial for Alexander Campbell of Delnies and others v Gabriel Napier, 13 Feb 1751, p. 2. Cf. Rennie, 8 Feb. 1847, 9 D. 619. Interestingly, this use of the word phrase “real Lying” coincides with the publication of Bankton, who refers, based on English law, to “real Lien”: cf. Steven, Pledge and Lien, 144–5. The alternate coun- sel, Patrick Haldane, did not use the phrase. The right of retention was later characterised as a lien by Professor George Joseph Bell: Steven, Pledge and Lien, 153. 41 This was a ranking of debtors. The “Novelty” was the suggestion that Napier’s adjudication (which, based on a bond by the client granted in 1742, would normally have ranked pari passu with other adjudications), should have priority because it was based on a mandate and request for credit to fund legal proceedings dating from 1733. The nature of this debt, it was argued, should exempt it from the inhibitions of competing creditors. 42 alsp, Arniston collection, vol. 142, no. 16, The Petition of William Wilson writer to the signet, 30 June 1780, p. 13 (also found in ibid., vol. 152, no. 15). 43 alsp, Arniston collection, vol. 176, no. 4, The Petition of Mrs Beatrix Cunningham, relict of the deceased John Haldane, Writer in Edinburgh, 13 Nov. 1787. 44 Haldane became a Court of Session agent on 15 Feb. 1755: nrs, Court of Session, Books of sederunt, CS1/14, fol. 40v.
One allegation was that Bell had only taken on the executry in order to help himself to papers belonging to Haldane and his clients, the possession of which would secure his fees while he unnecessarily prolonged and compli- cated the administration of the estate. Bell strongly resisted Cunningham’s offer of personal security in return for delivering the papers in question. This was another case in which a reputation was imperilled, with Bell accused of negligence and the gross betrayal of his client. Asserting that he retained rela- tively few papers, Bell relied on established authorities (eight cases were cited) in support of his entitlement to real security which, he argued, he could not be obliged to replace with mere personal security. As to the argument that the hypothec applied only where the account was undisputed, this was unwork- able. Otherwise, as Bell’s counsel pointed out:
every account, however just and unexceptionable in itself, would be immediately disputed, if it was once understood, that upon doing so, the right of retention would be at an end, and the writer obliged to accept of an offer of caution.45
The court did not always find in favour of the agent. In the case of Hay v Forrest (unreported), also in 1787, where James Hay ws was obliged to give up his cli- ent’s papers for as long as it took his client to enrol as a freeholder in time for an election.46 The money allegedly owed to him, however, had first to be con- signed into court and the client was ordered to return the papers to Hay as soon as he was enrolled as a voter. This latter case is an interesting social comment on how much the narrow landholding classes (including the judges) respected their franchise. Consigning the disputed sum, pending judicial or friendly resolution of the matter, appears to have been the quickest way to resolve such claims. Another example of it was seen in 1761 when Linlithgow attempted to recover documents missing from the town’s charter chest that were in the possession of Allan Clark ws, who asserted a hypothec because of expenses due to him.47 In the case of Callman v Bell in 1793 the Court decided that an agent’s hypothec did not extend to papers that were actively being used in litigation before the court. That case was unusual in that the client decided to change her agent while an action was depending in the commissary court. The agent, it was held, was not
45 alsp, Arniston collection, vol. 176, no. 4, Answers for Robert Bell, Clerk to the Signet, 15 Dec. 1787, p. 35. “Caution” is the Scots word for a personal guarantee. 46 Mentioned in argument by Robert Cullen in ibid., p. 33. 47 nrs, Linlithgow tcm, B48/9/11, fol. 305.
Patronage
The proper management of a legal career meant making the most of all opportunities for income and one way for local writers to supplement private practice was to obtain some office, such as keeper of the local register of sasines, from which might be drawn regular fees or perquisites.49 Competition for any office could be intense and normally depended on access to patron- age. Even an office incompatible with practice as a procurator, such as a clerk- ship in the sheriff or commissary court, might be attractive because it was less precarious than relying on private clients. That was not universally true. The sheriff-clerkship of Cromary was so unattractive, due to its “exceeding little business…[and] poor emoluments”, that it went unfilled for nearly two years, until Alexander Mackenzie ws was persuaded to accept it in 1763.50 He took it merely to “make him a little better known in the county”, filling it with a depute because no busy lawyer would solicit the office, or accept it, on condi- tion of personal attendance. Offce-holding, as a form of advertising, had an attraction even in Cromarty. Such offices represented assets which might be sold or, as in Mackenzie’s case, retained while the functions were carried on
48 Bell’s Principles (4th ed., 1839), 1395; the case is Campbell v Montgomery, 1790, Mor. 6259. It was also the only one cited before Bell’s admission to the bar in 1791. 49 See Finlay, Community of the College of Justice, 20–22; e.g. nls, Saltoun papers, 16556, fol. 132. 50 alsp, Swinton collection, vol. 2, no. 54, The Petition of Alexander Mackenzie ws, sheriff- clerk of Cromarty and George Greig depute sheriff–clerk, 18 Dec. 1766, p. 3.
51 nls, Saltoun papers, ms 16680, fol. 214. 52 Ibid., ms 16717, fols. 138r, 140r. 53 Ibid., ms 16693, fol. 204. 54 nls, Saltoun papers, ms 16767, fol. 67.
55 Ann E. Whetstone, Scottish County Government in the Eighteenth and Nineteenth Centuries (Edinburgh: John Donald Publishing, 1981), Chapter 3, esp. 71. 56 20 Geo. ii. c. 43, The Abolition of Heritable Jurisdictions (Scotland) Act 1747, came into force on 25 Mar. 1748. 57 nrs, State papers, RH2/4/368/2 fol. 199r. 58 The word “sheriff” shall be used here to designate a sheriff-depute. Some deputes sat almost all the time, some used substitutes almost all the time.
Illustration 3 Detail from John Kay, Original Portraits. ‘The artist under examination’ (1792). Kay stands before John Pringle, advocate, sheriff of Edinburgh (seated, right), with the sheriff clerk, Joseph Mack, seated between them. Kay’s furious protagonist, Hamilton Bell ws, is represented “black in the face” with rage, seated to the left. Reproduced by permission of the Special Collections Department, University of Glasgow.
(until salaries were introduced in 1787).59 The salaries paid by most were cer- tainly far too low to attract an advocate. For example, Frances Garden, the new sheriff of Kincardineshire who sat at Stonehaven, appointed Aberdeen practi- tioners as substitutes. Andrew Thomson, John Thain, James Leith and William Young, all advocates or writers in Aberdeen, were successively appointed by
59 nls, Saltoun papers, ms 17537, fol. 153v; Anon., “A procurator-fiscal—what he was, what he is, and what he will be,” 248.
Garden after he was sworn into office in April 1748.60 Thain had been one of the substitutes employed by Alexander Grant of Grantsfield, the sheriff-depute before 1748 who, though not trained in the law, was described in 1743 as having acquired “such Knowledge thereof as may be expected of a Country Gentleman.”61 While sheriffs gained financially from appointing substitutes, it added to their workloads if they maintained an Edinburgh practice and could involve them in disagreements with the local bar if they appointed unsuitable men. That was certainly the unhappy experience of David Walker in Stirling (see page 272). Across the board, a feature of requests for patronage is how carefully most supplicants had done their research and investigated the income of the office, the demands it made in terms of attendance, and whether it might be carried out by a deputy. The potential hazards of buying an office without proper preparation are shown clearly than in the extraordinary case of Wallace v Anstruther in 1712–13. Alexander Anstruther, clerk of the bills in the Court of Session, was alleged to have acted in an underhand manner when arranging, in an Edinburgh tav- ern, to sell his office to the young advocate Hugh Wallace of Inglistoun in 1710.62 Wallace’s father, an experienced writer to the signet, was in the next room while the papers were being signed. If Wallace’s version of the story is true, having agreed a minute of sale, Anstruther had promised Wallace in a back- bond the right to resile from their agreement if, on having invetigated the value of the office, he no longer wished to go ahead. But Anstruther, by sleight of hand, had deftly switched the backbond for another paper which promised merely that, in the event of Wallace’s death, the agreement would not preju- dice his heirs. When Wallace later queried this, Anstruther made a minor alteration to the backbond. At a further meeting, he refused to provide the backbond originally promised unless he was paid £100, a sum he later increased to £500. Wallace, evidently unable to raise the purchase price, was ultimately persuaded, or threatened, to hand over a bond for £500 as a means of escaping the original agreement. It was claimed that Anstruther had threatened to allege that Wallace had altered the backbond himself (it had remained con- stantly in his possession) and publicly accuse him of forgery.
60 nrs, Sheriff court of Stonehaven, court book 1735–96, SC5/1/7. 61 alsp, Elchies collection, vol. 14, no. 59, The Petition of Alexander Grant of Grantsfield, Sheriff-depute of Aberdeen, and John Thain, Advocate in Aberdeen, his Substitute, 17 Nov. 1743. 62 alsp, Arniston collection, vol. 4, no. 37, The Petition of Hugh Wallace younger of Inglistoun, 26 June 1712, p. 2.
This is an unique and complicated case of alleged circumvention, in which “a Man of known Experience and Dexterity in Business” had allegedly abused the trust of an ingénue counsel.63 There are points worth noting. First, it was presumed that the sale would be approved by the lord clerk register through the influence of a friend of Wallace’s father. This was quite normal. Patronage brokers like the clerk register could normally be convinced, for financial com- pensation, to grant their blessing to an arrangement of this kind. Secondly, as well as a payment of £1000, included in the price was the transfer of an obliga- tion binding on Anstruther to pay an annuity to a third party. This was highly unusual. No sensible purchaser would take on so uncertain an obligation, as Wallace apparently did, to pay 4000 merks (about £220 sterling) annually for the lifetime of a stranger. Finally, Wallace had clearly agreed to pay too much for the office and was unable to raise the sum required. At some stage, he invited a fellow advocate, James Paterson, to share in the purchase and hold the office jointly, but Paterson had demurred. Wallace’s counsel, Duncan Forbes, sought to reduce the bond for £500 on the basis that it was paid in fear (metus causa) of an unjust prosecution for forgery that would ruin the young man’s career at the bar. In his argument, Forbes spared no reference to Roman Law in accusing Anstruther of both fraud and concussion (extortion through intimidation).64 While the sale of offices was commonplace and always subject to some negotiation over the price—sometimes including a consideration in respect of future support for the incumbent’s widow—the details were normally agreed without great difficulty. Existing relationships often helped. For example, the Ayr writer Charles Dalrymple managed to secure the sheriff-clerkship of his native county through his uncle’s interest.65 However, there are also examples of great men being asked for their assistance, by people they did not know, in return for future political or other support.
Profit Sharing and Partnership
The personal income of writers and procurators is not widely reported. In 1793 Margaret McFarlane estimated that the Glasgow writer John Anderson, whom she alleged was in good business (she claimed he had one twentieth of all the
63 Ibid., Information for Hugh Wallace, 14 Jul. 1713, p. 1. 64 D.47.13 (concussio). 65 alsp, Arniston collection vol. 169, no. 24, Information for Mrs Sarah Dalrymple of Langlands and Doctor William Park, 30 Jul. 1785, p. 1. See further, page 394.
66 nrs, Edinburgh commissary court, CC8/6/981, Condescendence for Margaret McFarlane against John Anderson, 6 Nov. 1793, p. 1. 67 Ibid., Interlocutor in process, 23 Sep. 1796. 68 Finlay, ed. arnp, ii, no. 2679; rfpg, Sederunt book 1761–1796, fol. 207. 69 nrs, “McFarlane v Anderson, Act and Remit and Decreet for Expence of Extract”, 11 Feb. 1795, CC8/6/981, fol. 28. 70 Finlay, ed. arnp, ii, no. 2572. 71 gca, Glasgow tcm, C/1/1/30, fol. 523. The salary was still expressed as £100 Scots, although for some time Miller had been paid the sterling equivalent. 72 E.g., Samuel Mitchelson’s appointment of David Balfour in 1775: Finlay, Community of the College of Justice, 173.
James Dundas, during the last years of Erskine’s life.73 Dundas himself, how- ever, may have entered into a loose partnership arrangement with Hugh Robertson ws soon after his master’s death in 1791.74 To quote a clearer exam- ple of partnership, it is not known when that between William Mackenzie ws (adm. ws 1803) and Alexander Monypenny ws (adm. 1801), which was cer- tainly dissolved by 1821, began or how long it subsisted.75 Other arrangements, such as shared use of a writing chamber, suggest the possibility of partnership but may not have been. For example, Patrick Pitcairn ws shared a writing chamber with the writer James Armour in Edinburgh dur- ing the period 1715–1721.76 During that time he employed as a servant John Mein who shared a writing desk with Armour. Both Pitcairn and Armour employed Mein to write letters and do other business, but he was apprenticed to neither man and their businesses were separate. Operating in partnership, a common feature of nineteenth-century prac- tice, was much less prevalent prior to 1800. Partnership itself had long been a familiar form of business organisation; lawyers regularly corresponded with partners in banking and insurance businesses, for example, and law- yers themselves sometimes became partners in trading and other ventures. A legal pleading in 1766, however, suggests that mercantile practice in the use of co-partneries and joint adventures had been running considerably ahead of legal development and that, prior to the first publication of Erskine’s Principles of the Law of Scotland in 1754, the courts had not kept up with the living law of mercantile practice.77 John McLaurin, in successfully arguing that case, supported Erskine’s distinction between a partnership and a joint adventure by reference to a French authority, Jacques Savary’s Le parfait
73 Jasmin K. Hepburn, “A lawyer and his clients: David Erskine and the Stirlings of Keir” (llm Thesis, University of Edinburgh, 2011), p. 11; David M. Burns, Dundas & Wilson cs: The First Two Hundred Years [Edinburgh, n.d. (1987)], 13. 74 E.g. gca, Stirling of Keir papers, T-SK, 16/4/1 refers to “Dundas & Robertson” in terms indicating that it was the continuation of Erskine’s firm: see also Burns, Dundas & Wilson, 14 and App. ii. Both Dundas and Robertson, like Erskine, preferred to maintain the tradi- tional designation “clerk to the signet”; this is now reflected in Dundas and Wilson cs. Aside from the title, there was no difference between a cs and a ws. 75 sl, Petitions 1822–1830, “The Petition of James Dalgleish clerk to Clerk to Alexander Monypenny ws.” 76 sl, ws Society Sederunt book 1714–1732, fols. 175–177. 77 alsp, Arniston collection, vol. 85, no. 1, Answers for James Paul merchant in Glasgow and ors to The Petition of Robert Donaldson, merchant in Glasgow, 10 Jul. 1766, p. 13; John Erskine, Principles of the Law of Scotland: in the order of Sir George Mackenzie’s Institutions of that Law (Edinburgh: Printed by Hamilton, Balfour and Neill), 1754.
78 Erskine, Principles of the Law of Scotland, 3.3.10. The text is unchanged in the 3rd edition of 1764 from that in the first edition. 79 Cf. the comments of Hume: G.C.H. Paton, ed. Baron David Hume’s Lectures, 1786–1822 (6 vols, Edinburgh: Stair Society, 1939–1958), ii, 188–9. A joint adventure in modern Scots law is not regarded as being distinct from a partnership. 80 eca, crb minutes, SL30/1/1/13, fo 190. For other such partnerships, see Finlay, “Scots lawyers and the House of Lords,” 263; Finlay, “Scots lawyers, England, and the Union of 1707,” in Hector L. MacQueen, ed. Miscellany Seven (Edinburgh: Stair Society, 2015), 257–8. 81 See Finlay, “Scots lawyers and the House of Lords,” 262–3; nrs, GD330/73, fols. 195–6. 82 There are other potential reasons for forming a partnership, including the need to com- bine capital, the need to reduce overheads and the desire to combine in order to domi- nate a limited marketplace. 83 alsp, Ariston collection vol. 60, no. 30, Information for Gilbert Pringle of Torsonce, defender, 29 Jun. 1761, p. 4. 84 sl, ws Society Sederunt book 1785–1805’, fol. 271. See further below.
In 1800, however, the Court of Session decided that while the ws Society could prohibit members from entering into partnership with non-members for carrying on business falling within what remained of their exclusive privi- leges, it could not prevent them forming partnerships with others for carry- ing on any other branches of business.85 By the middle of the nineteenth century, writers to the signet can regularly be found in partnership with ordinary writers.86 Although firms with a long pedigree, like Dundas and Wilson, McGrigors, and J.C. & A. Steuart, could trace their origins back into the seventeenth or eighteenth centuries, in fact they originated with a series of sole practitioners and generally did not take on the legal persona of a firm until the nineteenth century.87 By the end of the eighteenth century, partnerships between law agents did exist and, by the 1820s, they had grown in popularity. This was a movement in both large urban centres and rural areas. For example, Robert Grahame and Andrew Mitchell were functioning in partnership in Glasgow in 1800; Thomas Goldie and Robert Threshie in Dumfries in 1802, and, by 1803, two Selkirk writers, George Rodger and John Paterson, were also partners in their legal business.88 John Buchanan, in handwritten notes on his copy of his published Remini scences, instances several examples of legal partnerships in the Glasgow of his youth.89 John McEwan, who had succeeded to the business of the respectable Joseph Crombie, was in partnership with Thomas Ballingall who had previ- ously been a sole practitioner. McEwan & Ballingall, which dissolved in 1816,
85 Faculty Decisions 1796–1801, 380. Printed pleadings may be found in slsp, Robert Gray and others, members of the Society of Solicitors before the Commissary, Sheriff and City Courts of Edinburgh v Keeper, Commissioners and members of the ws Society (1799–1800) 399: 83; 403: 28, 30; 414: 15. 86 E.g. alsp, The Petition of Thomson Paul ws, 1 Jun. 1840, Hope collection, vol. 266, no.1; the trustees of the Hon. Henry Erskine (d. 1817) employed Messrs Inglis, Robertson and Weir ws to manage the estate and they were described in pleadings as “a company” [i.e. part- nership] in 1817: alsp, Miscellaneous collection, ser. 16 (1817–31), Memorial for The Hon. General Alexander Duff, n.d., pp. 2, 4. 87 Steuart and Steuart can be traced back to a sole practitioner, John Steuart, in 1663: nrs, Records of J.C. and A. Steuart, Writers to the Signet, GD1/1256. The firm was formed in 1871. In Scots law, a partnership is a legal person in its own right. 88 gca, Letterbook of Graham & Mitchell, law agents, 1800, T-MJ/47; nrs, Barjarg papers, GD78/237/1; sba, D/47/77/9. On Graham and Mitchell, see above, page 111. 89 [Buchanan], Reminiscences in connection with the Legal Profession in Glasgow. This copy, with fascinating extra information, is in gul, Spec. Coll., as part of the Murray Collection [Mu24-c.3].
Partnership Agreements
Unfortunately, the practical details of such working relationships prior to 1800 have rarely survived. The only original contract of co-partnery between law- yers yet to have been discovered is that between two Jedburgh writers, James Fair and Andrew Lookup, dated 15 March 1773.91 This was an agreement to unite their business for a period of six years in the following terms:
Both parties severally Bind and Oblige themselves faithfully and carefully to attend to the execution of all business either jointly or separately undertaken and to be mutually aiding and assisting therein when not employed by Clients of contra-interests in the same affair.
This recognised the scope for conflict of interest between clients in a small burgh. The timing, within a month of Lookup’s admission as a notary, suggests that he had recently emerged from apprenticeship. If Fair had been his apprentice- master, then there would at the time of the agreement have been no conflict between their existing clients (if Lookup had any) although it is possible that Fair may have feared the consequences of Lookup establishing his own busi- ness in competition with him. More positively, he may simply have wanted to remove some of his own burdens by taking on a young vigorous practitioner as a junior partner. Fair, as the senior practitioner with an established business, was to have the lion’s share, two-thirds, of the profits.92 The contract stated that
90 Of the partnerships in this paragraph, only Mitchell and Mitchell (1791) and Douglas and Ferguson (1811) are mentioned in William M. Hutcheson, A List of Legal Firms (Glasgow: Printed for the Royal Faculty of Procurators in Glasgow, 1953), 32, 42. Some partnerships left little trace. 91 sba, SC/R/76/1/23. See Appendix, doc. no. 11. 92 Fair became a notary in 1763, Lookup in 1773: Finlay, ed. arnp, i, no. 1659; ii, no. 1949.
Lookup is to have one third part of all the Fees, Free profits and Emolu ments arising from all and whatsomever business both or either of them jointly or separately shall undertake the management of either as writers, agents Factors clerks or Procurators (the Clerkship of supply excepted allenarly).93
This was prescient. Eighteenth-century burgh politics in Jedburgh were con- fused both through interference from local landowners (especially the Pringles) and tensions sparked by seriously declining trade.94 The council, at the time this contract was made, was suspended and the burgh placed under the man- agement of a committee of inhabitants appointed by the lords of session. After the council was re-established, Fair was made joint town clerk, in September 1774, alongside another writer, Henry Ainslie.95 Anslie soon found himself in trouble with the House of Commons over electoral malpractice and out of favour with the new council over the burgh accounts. Fair was permitted to commission Lookup as his depute in April 1775 and both men were elected joint town clerks the following September.96 When Fair became one of the baillies in 1777, Lookup continued as sole town clerk until 1784 when he nar- rowly, and controversially, lost the election to another writer, John Thomson.97 The contract between Fair and Lookup obliged both partners to keep proper records and accounts. In the event of a client not being charged, or a credit not being properly recorded, there was a penalty clause by which the negligent partner had to pay the other double the amount omitted. Further, it was pro- vided that
frequent or habitual omissions or negligence in business, or generally fol- lowing any course or habite in life contrary to or inconsistent with the trust interest of the Society and copartnership shall ipso facto make void and null the same.
Fair’s dominant position is clear in the concluding part of the contract whereby at the end of the agreed period, he alone had the option to continue the part- nership for a further ten years, although this was on the condition that during that additional period Lookup be treated as an equal partner.
93 Fair was clerk of supply of Roxburghshire. 94 eca, SL30/1/1/11, fols. 173–4, 177; SL30/1/1/13, fols. 276, 338, 526. 95 sba, BJ/1/7, Jedburgh tcm, 24 Sep. 1774. 96 Ibid., 10 Apr. 1775; 29 Sep. 1775. 97 sba, BJ/1/9, fols. 164–5, 166.
From Fair’s point of view, the agreement represents a compromise: he judged that limited profit-sharing was better for him than outright competi- tion. Ostensibly, the partners thought “it would tend to their mutual advantage to unite in carrying on business rather than carrying it on upon separate inter- ests” and this suggests that the threat of competition, should Lookup develop a successful business of his own, was real enough. In Glasgow, the firm of Maxwell and Smith was formed in January 1782 and continued in business until the death of John Maxwell in 1793.98 The terms of the partnership are known from a subsequent court case stemming from the haphazard book-keeping practices of Maxwell and his partner, Archibald Smith, who died in 1808.99 Both men were writers in Glasgow but Maxwell was also heavily engaged in a brewing business and, that he might contribute time to the partnership, the writing office was located near to his brewery. As “writers, notaries and procurators”, Maxwell and Smith undertook not to carry on any separate business as writers. They were to share profits and losses equally, although Smith, due to Maxwell’s brewing business, was the only one required to dedicate all his time to the business making him clearly the junior partner. The salaries of any offices which either partner acquired were excluded from the agreement and to be retained for the private use of each individual. While accounts were to be kept and balanced each January, this was only improperly done. Smith had kept day books, in which he recorded funds received from clients, and ledgers, in which he accredited client accounts with funds received, and there was a partnership expense book; but these were not properly reconciled. After the partnership was ended, an accountant had to go through these sources and make up a “cash book” to create a clear picture of income and expenditure.100 Moreover, it would appear that Maxwell was in the habit of giving his wife small sums for housekeeping purposes from the partnership’s funds without this being properly recorded. Property owned in common by the partners, consisting of two shops in Glasgow (in Candleriggs and Bridgegate respectively) and a house, provided rental income but this was not properly recorded in the accounts.101 As noted earlier, other Glasgow partnerships certainly existed by about 1800. Around that time the Ayr writer, Alexander Murdoch, can be found
98 nrs, CS96/104, fol. 1. See Appendix, doc. no. 3, for a fleeting reference in 1782. 99 Ibid., fols. 1–2. The original contract of co-partnery has not been traced, and may not survive, but it is summarised here. 100 Ibid., fol. 84. 101 Ibid., fol. 93.
102 nrs, GD1/476/1. Creelman must have been the Glasgow writer Henry Creelman (adm. notary 10 Jul. 1802): nrs, Admissions Register of Notaries Public, NP2/27, fol. 137. 103 On 17 Mar. and 19 Apr. respectively: rfpg, Sederunt book 1761–1796, fols. 292, 284. Macpherson claimed to have been a procurator in Edinburgh before transferring his prac- tice to Glasgow. 104 Hutcheson, List of Legal Firms, 42; gca, agn, 19/371; the papers are classified in the City Archives as T-MJ. No partnership agreements appear to survive. The firm merged with the almost equally old Hill & Hoggan in 1972 and, following another merger in 1985, became Mitchells Roberton. The papers of Hill & Hoggan are also in the City Archives (T-HH). Graham is rendered without an “e” in the sources and here but is sometimes found else- where as Grahame. 105 We should not be misled by firms which today like to date their origins to the distant past. Morton Fraser, for example, claims to be Scotland’s oldest law firm, but it was not the first to exist as a partnership and it traces its origins back to a series of sole practitioners, becoming a “firm” only in the nineteenth century. 106 Hutcheson, List of Legal Firms, 32, 36. 107 Paton, ed. Hume’s Lectures, ii, 171. 108 From what is known of early firms in Glasgow and Jedburgh, they had fairly regular busi- ness with lawyers in England. 109 John Henderson Begg, A Treatise on the Law of Scotland relating to Law Agents (Edinburgh: Bell & Bradfute, 1873), 382–88, esp. 384.
Sub-contracting and Double Agency
It was a feature of practice that an agent in an urban centre would regularly have to employ others to act on behalf of his client. Apart from being reflected in the routine payment of fees and perquisities to office holders and those who kept various registers, this would often extend to messengers who were autho- rised to serve notices or to physicially capture debtors and might also include local procurators sub-contracted to carry out particular items of business. Depending on the nature of the transaction, the terms of such employment might be subject to individual negotiation. In the case of the employment of messengers to execute letters of caption (that is, to take debtors into their cus- tody), writers might agree a flat fee with the client to have such letters served. In 1738, for example, the merchant George Miln agreed to pay a defined sum to the writer John Ure for executing a caption. Ure in turn employed the messen- ger Robert Stewart to carry out the task and Stewart duly spent three days a week from August until January 1739 trying to locate Miln’s debtor, a service for which he charged £20. The practice only came to light when Stewart’s own creditors tried to arrest this fee in Miln’s hand: because he was not Stewart’s employer, Miln had no liability towards him.110 Clients generally knew their local writer much better than they did Edinburgh agents and they often demonstrate a candour and directness in local correspon- dence which reflects a long-standing relationship. Campbell McIntosh in Inverness was promised by one client that he would settle with him the next time he came to town, but he was warned rather testily to make his fees “as moderate as possible, in consideration of what I formerly to no purpose paid.”111 Sometimes clients drew on their law agents for considerable sums and might easily become indebted to them. Writers who obliged clients in this way had to calculate the risk carefully. Paying a client’s debts was equally risky. John Murray was so involved with the affairs of John McLaine that he feared per- sonal ruin. He wrote to his client in 1769 informing him that he was
at present absolutely unable to pay my own private necessarys, much less the debts contracted to assist you, so that if you do don’t exert yourself in my relief I will be knocked up entirely.112
110 alsp, Hamilton-Gordon collection, 2nd collection, vol. Ma-Mo.,The Petition of Georege Miln Merchant in Edinburgh and John Ure Writer in Edinburgh, 11 Feb. 1741. 111 nrs, Fraser-Mackintosh papers, GD128/51/5A, 12 Feb 1791. The emphasis is in the original. 112 nrs, Maclaine of Lochbuie papers, GD174/273/14.
In Edinburgh, it is clear from account books that writers regularly laid off indi- vidual items of work to be done locally either in the writing chambers of others or via the employment of a procurator. Such practices can also be found else- where. In 1790, the Fort William writer Archibald MacLachlan, for example, employed the Inverness writer Campbell McIntosh, in the name of his client, Duncan Campbell, to manage an action for Campbell in the sheriff court at Inverness. MacLachlan sent McIntosh a guinea as a retaining fee, and promised that he would be “thankfully paid” for his trouble and charges in the matter.113 This latter case raises the issue of double agency, which in the early nine- teenth century was recognised by the Court of Session as the prevailing cus- tom.114 This meant that if a client based in Dumfries, for example, had business there and also business in Aberdeen then he would either have to employ two agents, one who practised in each area, or through his Dumfries agent he would have to employ a second agent in Aberdeen. What he could not do was instruct his Dumfries agent to deal with the Aberdeen business, because that would infringe the privilege of Aberdeen practitioners. In 1820 it was found to be unlawful for two Scottish law agents to share the fee for the same item of business.115 This meant, in the context of our example, that Dumfries and Aberdeen agents could not work together on an Aberdeen matter: the Aberdeen agent would received his usual fee and, if the Dumfries agent instructed him on behalf of his client, then he would also receive his full fee for doing so. One consequence of the rule was described to the students in the Scots law class at the University of Glasgow in 1851 as follows:
A writer in the country who employs an agent in Glasgow, e.g. to conduct a case, and the Glasgow agent employs an agent in Edinburgh, the Glasgow agent is liable to the Edinburgh agent in the first instance for the expenses in conducting the case.116
This appears to have been the principle at play in an account submitted to the Edinburgh writer George Andrew by James Glashan, a writer in Keith.117 Glashan
113 nrs, Fraser-Mackintosh papers, GD128/41/5. 114 As well as Brashe (infra), see Macqueen, 4 Jul. 1826 4 S. 786. The questions in these cases seem not to have been raised judicially in the 18th century. 115 Brashe v McKinnon 9 Mar. 1820 20 F.C. 127. Begg, Treatise on Law Agents, 21, 389. 116 nrs, “Notes taken from the Lectures on the Law of Scotland by Professor Maconochie of Glasgow University, delivered during the Session of 1850 to 1851 by Robert Goudie Jr,” SC6/83/1, lec. 38 (1 Feb. 1851). Contractions expanded. 117 nrs, D & J.H. Campbell ws, papers, GD253/140/7.
Bankruptcy
Young men in the profession, even the sons of practitioners such as John Shaw, who entered as a notary in 1736 and began to develop a practice as an Edinburgh writer, often needed capital if their business was to take off.118 In Shaw’s case he borrowed £200 sterling from the advocate David Moncreiff in 1739. His cau- tioner was John Baillie ws. Shaw was owed £250 under a marriage contract entered into when he married Christian Murray, daughter of the merchant Robert Murray, in 1738 and this debt was used as security for Baillie in provid- ing a guarantee for repayment of the loan. Shaw proved unable to repay the loan and Baillie, having made good the debt, then commenced a series of actions in a bid to recover sums owed to Shaw. Twenty years later, Baillie’s son George, was still entangled in these legal processes. Shaw had clearly not pros- pered and Baillie, who had done him a considerable favour, had no doubt long regretted his misjudgement. Such a story is not untypical. Sometimes lawyers prospered, sometimes they failed, and sometimes they had cause to appreciate what it was that saved them from the latter fate. In his last testament Robert Jamieson ws (d. 1808) certainly knew whom to thank for the preservation of such wealth as he had acquired in the course of his profession.
By Gods blessing on my lawful endeavours joined with a strict oeconomy on the part of me and my wife my funds are now increased & upwards of five times more than they were at the period of our said marriage and… this increase is in a great measure owing to my said wifes prudence and oeconomy…119
As a reward his wife, Katherine Lockhart, received a generous settlement of £240 per year from the estate. Many local writers like Jamieson did well out of their profession. In Glasgow, for example, John Wilson was able to acquire a modest garden and summerhouse
118 Finlay, ed. arnp, i, no. 1023. 119 nrs, Wills and Testaments, SC70/1/2, fol. 83.
120 alsp, Arniston collection, vol. 169, no. 25; Pitfour collection, vol. 7, no. 15; Arniston collec- tion vol. 152, no. 33. 121 alsp, Arniston collection, vol. 60, no. 30, Information for James Leslie senior, Writer in Edinburgh, Pursuer against Mr Gilbert Pringle of Torsonce, Defender, 5 Mar. 1761, p. 1. 122 See Finlay, Community of the College of Justice, 173. 123 gca, Graham and Mitchell Letterbooks, T-MJ/47, fol. 227, 7 Jul. 1800. 124 Ibid., fol. 269.
William Coldstream in Dunblane to pay some money to a local man on his behalf “as it is not a very safe way to send it by carrier.”125 If Auld gave the debtor a receipt, Coldstream promised to repay him. In the interests of good client relations, writers might occasionally allow debts to lie where temporary cash flow problems made it unlikely that the cli- ent could pay them anyway. But such indulgence was risky. As James Naysmith wrote to his client Alexander Murray of Broughton in 1743, “I am neither Rich nor poor, and my credite hitherto hath been a most tender point.”126 Maintaining a reputation for financial prudence, particularly in rural com- munities, was essential. The Inveraray writer James Campbell had to beg a loan from his father because if he could not clear his own debts his entire livelihood would be lost. He acknowledged that, as someone expected to safeguard his clients’ funds, if his failure to manage his own money were known it “would ruin for ever my character as a man of business in this country.”127 James Gilkie, in his petition for entry as a procurator in Selkirk, was accused of having previ- ously been imprisoned for civil debt. He complained about the inhumanity of making “a man’s poverty an objection to his being permitted to gain a livelie- hood” but did not deny the allegation.128 He blamed past difficulties on poor investment decisions, claiming that his funds were “locked up by securities on sequestrated estates” and that, if all those estates were sold, he was worth over £1000 sterling. Even in Edinburgh, at the highest social levels, lawyers encountered money problems. It was the inability to extricate himself from debt that drove the Court of Session judge, Robert Pringle (Lord Edgefield), to commit suicide in 1764 when he drowned after jumping from the peer at Leith.129 Pringle, formerly sheriff-depute of Banff, under the patronage of the earl of Findlater, and an assessor of Edinburgh, was well-connected and had long been active at the bar. William Innes ws, although regarded as “a very honest Man in his Profession”, was notoriously indebted, so much so that he was unable “to procure himself the common Necessaries of Life.”130 When, late in life, he married the widowed Janet Cunningham, Lady Dunipace, she ensured that under the marriage con- tract he had no right to any of her income or estate. Ultimately, his creditors
125 nrs, Papers relating to William Coldstream, GD1/392/176. 126 nrs, Murray of Broughton, GD10/1421/10/428. 127 nrs, Campbell of Barcaldine papers, GD170/1127/1. 128 sba, 74/7, The Petition of James Gilkie, Writer in Edinburgh, Dec. 7. 1764, p. 19. 129 nrs, Papers of the Murison (Morrison) family, Troup, GD1/808/9. 130 alsp, Miscellaneous collection, vol. 17, no. 47, The Petition of Mary Watson Widow of Samuel Maclellan Portioner of Dalkeith and john Vert Writer in Edinburgh, 26 Feb. 1750.
[H]is present melancholy situation did in a great measure arise from his being cautioner without relief and the death of some of his best friends. His negligence to make early clearances with clients. The losses occurring to him at their death and insolvency and many other misfortunes such as suffering by some of his relations, particularly one of them who left the country at least two hundred pounds sterling in his debt.131
The debts of another relative, a failed collector of excise, had caused Stewart “to dance attendance at the board [of excise] for several years and to be caught up in lengthy and distracting proceedings with the Lords of Treasury in London.” Like a number of other practitioners, he could also point to physical “infirmities and want of fortitude” which contributed to his difficulties in busi- ness. The ws Society granted him an annual pension, conditional on his retir- ing from business, but not all lawyers were so fortunate. The consequence of failure meant that writers could not provide for their families, a circumstance made even worse when a writer left an indebted estate that became the subject of litigation. William Thomson, the son and grandson of deceased writers to the signet, petitioned the ws Society for char- ity in 1722 having been “reduced to great straits through the Disorder of my father’s affairs.”132 The society paid for some clothes and other necessaries and it was for cases such as these, and of course provision for widows and young orphans, that legal societies across the country maintained poor funds and rolls of pensioners. It was natural that the estates of some bankrupt lawyers should fall into the hands of more prosperous professional colleagues. For instance, when John Inglis ws became bankrupt in 1721, his estate of Wester Howden was exposed for sale by his creditors only to be purchased by the Edinburgh writer James
131 sl, ws Society Sederunt book 1732–1750, fol. 477. A “cautioner” in Scots law is a guarantor or personal surety. A latron, or “lettern”, was a lawyer’s desk. 132 sl, ws Society Sederunt book 1714–32, fol. 122.
Scott, whose own circumstances eventually became embarrassed, leading to a sale to another lawyer, William Wilson ws, in 1753.133 Such vicissitudes reflect the ups and downs which some practitioners experienced during their working lives as they became vulnerable to illness, loss of capital or reputa- tional damage. Many lawyers were seriously affected by the failure of Douglas, Heron and Company (the Ayr Bank) in 1772.134 Those who were partners in the bank, and anyone who had guaranteed their debts, became subject to unlimited liability. The bankruptcy legislation was sorely examined as men, such as John Syme ws, scrambled to remain afloat professionally in the face of crippling debt. Syme owed £6000 to one of his clients but, in a tangled web of financial manoeu- vring, his attempt to transfer landed property in security of that debt was ques- tioned by his other creditors, including the directors of the Ayr Bank.135 In business terms, there were many potential pitfalls for writers and advo- cates. When he died in April 1783, the Dumfries writer William Clerk left his affairs in disorder and was thought to be owe more than £3000 sterling. It was said that
Mr Clerk’s business as a writer, for several years before his death, had been inconsiderable; and for some time he had been incapable of attend- ing to it.136
This suggests a lingering illness, perhaps brought on by the stress of being an indirect victim of the Ayr Bank collapse. One of his clients, the merchant David Bean of Meiklefurth-head, had been bankrupted by that event and Clerk was bound by a cautionry agreement with him. The debt amounted to £664, more than four times the value of Clerk’s house. Clerk benefited from a bond of relief, granted by the London merchant Samuel Bean, and upon his death this right of relief was the largest asset in his estate. He had also been cautioner for his brother James, another merchant, who owed him £100. These links to the merchant community had no doubt assisted in building up his law practice: but they also proved to be its undoing.
133 alsp, Arniston collection, vol. 110, no. 4, The Petition of William Wilson Writer to the Signet, 23 Jan. 1773. 134 See Finlay, “Corruption, regionalism and legal practice,” 156, 157, 158, 161. 135 alsp, Arniston collection, vol. 152, no. 42, The Petition of Messrs Douglas, Heron and Comany, and others; Creditors of John Syme, Writer to the Signet, 12 Nov. 1782. 136 alsp, Arniston collection, vol. 169, no. 25, The Petition of Janet Costine, Relict of William Clerk Writer in Dumfries, 13 Dec. 1785, p. 1.
Negligence
The final perspective of the lawyer’s ability to manage his activities is the question of negligence. Any careful agent would insist on proper instructions from his cli- ent and if not yet fully instructed as to his client’s version of the facts he would proceed with great caution.137 Errors by an agent, of course, might have conse- quences at a later stage of any legal process and could affect the strategy under- pinning the handling of the litigation should it proceed to the central court. According to Lord Bankton, if an advocate in the Court of Session did his best and made a mistake of fact, his client had no remedy, although the error could be rectified at any point prior to the decree being extracted.138 There was no remedy for an error of law or any mistake in counsel’s opinion, provided such a mistake was not made fraudulently. In the inferior courts agents or procurators, however, were liable to reimburse their clients for any damages incurred through their own fault or that of anyone they employed. Two issues therefore emerge from Bankton’s discussion, the question of immunity of counsel and that of fault-based liability for procurators. The more preparation time a lawyer had the less likely that he would make an error. From a client’s perspective, it may have been wiser to seek the opinion of junior advocates with more free time for research, than to approach busier counsel who might be too burdened with work to give his case full attention. Charles Areskine admitted as much in 1725:
those who plead Causes without being chargeable with Fraud, may at one Time with more Evidence set furth the Law, when their Industry is awaken’d, than at another, when they are not moved with the same Zeal.139
In a process of scandal between Robert Donaldson ws and John Innes ws in 1785–6, Innes alleged that he was immune from an action of defamation for remarks he made on behalf of a client in written answers to an objection made against the right of his client to stand as a freeholder in Nairn.140 The answers, though written, were read aloud by Innes then signed by him before a meeting of freeholders in the Tolbooth of Nairn. Donaldson, another freeholder and
137 E.g. nrs, Murray of Broughton papers, GD1741/273/10. 138 Inst., iv.3.34-5. 139 alsp, Hamilton-Gordon, 1st collection, vol 15, no. 7, Information for Sarah Carlyle, Widow of William Lyon younger of Easter-ogle, against the Creditors of her said deceast Husband, 11 Jan. 1725, p. 4. 140 nrs, Edinburgh commissary court, diet books, CC8/6/770, Summons, p. 2.
it was his duty, to state what he did on the part of his Client; and he was not blameable even if he had been mis-informed in what he stated; − He did not state any thing wantonly or maliciously against any Man; nor any thing foreign to his Clients cause.141
The English jurist Blackstone was cited as an authority for the proposition that no counsel was liable for anything he said in a judicial proceeding that was rela- tive to the matter in hand and based upon his client’s instructions.142 Both sides acknowledged that the Court of Freeholders was a judicial forum. Despite this, Innes was required to apologise by the commissaries of Edinburgh and his palin- ode is recorded in the process. Given that his allegations were based on third party information, and that counsel had revised his paper before it was submit- ted, in a sense he was unfortunate. However, he had signed the paper and his client (who had not produced the alleged information relied upon), declined to confirm the allegations when pressed to do so. As the agent for Donaldson pointed out, Innes did have a right of relief against his informer but was to blame for not taking greater care before repeating malicious accusations. The liability of procurators was based on the Roman Lex Aquilia. To estab- lish that a procurator or agent was liable to his client, it was unnecessary to establish “fraud or design” on his part. All that was required was to demon- strate prejudice arising from “culpable neglect.” This was the consequence of Wood v Robert Fullerton ws in 1710, which Lord Fountainhall said was regarded as a new decision but one “judged necessary to cause men in public offices look better to the discharge of their duty, that the lieges do not suffer by their carelessness.”143 Fountainhall drew comparison with the well-known Roman law example of a surgeon who was liable for negligently failing to provide after- care for his patient.144 Charles Hamilton-Gordon used the same comparison in a 1744 case brought against Thomas Watson ws.145 He also cited Johannes Voet,
141 Ibid., fol. 5. 142 Ibid., fols. 9, 17; William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1769), iii, 29, 125. 143 Fountainhall, Decisions, ii, p. 602. 144 D.9.2.8pr. 145 alsp, Miscellaneous collection, vol. 17 (1737–43), no. 121, Answers for Robert Johnston Merchant in Eymouth to the Petition of Thomas Watson Writer to the Signet, 4 Dec. 1744, p. 3.
Humanum est errare. And Lawyers and Writers cannot, and it is thought never did pretend to Infallibility, more than those of other Professions. All that is incumbent upon them is, to be able to give such Advice, or to act with such Diligence as is reasonably to be expected, or commonly to be met with in the ordinary Course of human Affairs. But, surely, it can never be maintained, that they are to be made liable for every Damage which, in after-times, their Clients may suffer, because they could not foresee every Event that was to be happen, or take further Precautions than human Foresight could reach.149
146 Voet, Commentarius ad Pandectas, 3.3.17. 147 Alexander Abercrombie, Disputatio Juridica, “De Mandato” (1694). The same title, D.3.27, was also assigned to George Sinclair in 1726. 148 Ibid., “De Mandato”, v (see also, xii); Cicero, Pro S. Rosc., 113 (and, generally, 111–13). 149 alsp, Arniston collection, vol. 57, no. 4, Information for John Baillie, Writer in Edinburgh, Defender against Jean Lockhart, and Andrew Storie Surgeon in Peatpots, her Husband, Pursuers, 29 Jun. 1759, p. 7.
In cases of alleged financial mismanagement, the lawyer might find himself in the position of a trustee. An example is a case against John Hamilton ws who, in 1723, received a commission of factory from Colonel John Erskine.150 Erskine had suffered a “palsy” and the commission was granted ob causam infirmitatis (by reason of infirmity) to Hamilton who was his ordinary doer. Hamilton was accused of collecting rents and other funds but failing to invest them and so causing loss to Erskine’s children. Having undertaken such a trust, it was argued:
that a reasonable Degree of Diligence, such as any Man of common Prudence would adhibite in the Management of his own Affairs, should have been adhibited by Mr. Hamilton in the Management of the Estate of a Gentleman incapable to look after his own Affairs, and in which so many infants were interested.151
For his failure, it was argued, Hamilton was entitled to no, or at least to a restricted, gratification. The “reasonable diligence” standard does not seem to have been particu- larly onerous. It required an agent to do no more than act with common pru- dence in managing his clients’ affairs as he would his own. A competent agent or factor would not, for example, allow a large sum of money to lie “dead in his Hands” for an extended period, but would invest it prudently.152 There was occasional discussion of the extent to which a writer was respon- sible for his clerk. In 1733, in the Court of Session, two clerks of session referred to the “Hazard and Burdens to which the several Clerks in each Office are lia- ble, by the Negligence or Malversation of their Servants” as a basis for main- taining the three sets of clerks’ offices as independent establishments.153 In 1808 the magistrates of Inveraray were strongly of opinion that it would be illegal to incarcerate a procurator’s clerk for not returning a process, unless the clerk had left his own signed receipt for it.154 In that case, in the absence of a
150 alsp, Hamilton-Gordon 1st collection, vol. 12, no. 18, Information for Lady Douglas of Kilhead and others, children of the deaceas’d Col. John Areskin against Mr John Hamilton ws, 17 Jan. 1744. 151 Ibid., p. 4 (per Alexander Lockhart). There is also reference to the standard of the bonus paterfamilias in dealing with his own affairs: ibid., p. 9. 152 Ibid., p. 8. 153 alsp, Craigie collection, vol. 6, no. 3, The Petition and Answers of Mr Alexander Mackenzie, and Mr James Justice, two of the Principal Clerks of Session, and Alexander Tytler writer in Edinburgh, one of the extractors in their office, 20 Feb. 1733, p. 1; for the context, see Finlay, Community of the College of Justice, 196–7. 154 nrs, Papers of John Gray, Lord Advocate’s clerk, RH15/76/9/8.
155 alsp, Craigie collection, vol. 46, no. 11, The Petition of Christian Watson, 9 Feb. 1757. 156 alsp, Answers for Robert Johnston (above, n. 145). 157 Thomas Craig, Jus Feudale Tribus Libris Comprehensum Quibus Non Solùm Consuetudines Feudales, & Praediorum Jura, Quae in Scotia, Anglia, & Plerisque Galliae Locis Obtinent, Continentur (Edinburgh: Thomas and Walter Ruddiman, 1732), 1.8.15 (animadvertendum, ne vel Negligentia, vel Imperitia aut fortasse Dolus Advocatorum).
House, Lord Coalston expressed disappointment at the failure of counsel on both sides to consult Dirleton’s Doubts because Dirleton’s view, on the point at issue, had been laid down “in a distincter manner than by any of our Lawyers.”158
Networking
One of the most telling aspects of the management of a successful legal prac- tice was the ability to work well with others in the profession and to develop a network of relationships with them. That much of the correspondence of prac- tising lawyers was not with clients but with other lawyers practising at a dis- tance is clear from the examination of accounts and letterbooks. The Glasgow firm of Mitchell and Grahame again provides an instructive example, particu- larly because it was active when Glasgow was beginning to expand into a vital mercantile and industrial centre.159 From January to mid-August 1800, the firm kept copies of 380 letters or memos that it sent to clients or to other lawyers. Robert Grahame signed 157 of them; his partner, Andrew Mitchell, signed 150 (21 are unsigned in the letterbook, while clerks signed the remainder). They were addressed to 166 correspondents throughout Scotland, from Aberdeen to Lochgilphead and Ayrshire, and also in major English cities such as London, Manchester and Liverpool. The addressees included bankers, surveyors and merchants; Thomas Edington of the Clyde Iron Works; a Manchester attorney named George Duckworth; the London Patent Office; and a number of tailors, shoemakers and other artisans. The correspondence with clients, however, is far outweighed, both in terms of the number of correspondents and the number of letters, by that addressed to other Scots lawyers. In eight months, the firm wrote 97 letters to twenty- two different writers to the signet in Edinburgh (including thirty-five letters to just three of them, Robert Hill, William Berry and John Taylor).160 Another 70 letters were written to twenty-seven ordinary writers (plus five clerks or apprentice lawyers). These men, particularly Ninian Hill and William Ellis, practised in Edinburgh, but others worked in places like Bathgate, Paisley and Stirling.
158 alsp, Swinton Collection, vol. 1, no. 7, The Petition of William Farquhar, 6 Aug. 1766, hand- written note. 159 gca, Records of Messrs Mitchells, Johnston & Co. solicitors, Glasgow, T-MJ/47. The statis- tics in this paragraph are drawn from the volume for 1800. 160 The firm’s daybook indicates considerable work was also being done for John Pattison ws during the year.
The purpose of these letters tended to vary according to their destination. Those written to Edinburgh lawyers normally solicited their services. Letters addressed to lawyers elsewhere often issued instructions concerning litigation or directing the carrying out of conveyancing or other transactions. For instance, William Patrick ws was asked to supply letters of arrestment in order to found jurisdiction in an action to be brought by a Glasgow merchant against merchants in Port Royal, Virginia.161 Writers to the signet were employed to make searches for deeds or encumbrances in the General Register of Sasines and other registers kept in Edinburgh. In 1803, Andrew Mitchell wrote to the Edinburgh agent, his cousin, William Ellis, sending him a bill of advocation together with a process from the sheriff court of Hamilton and asking that he serve the bill in the Court of Session if he thought the sheriff’s judgment was wrong.162 James Chrystal, a writer in Stirling, was a regular correspondent and received directions and papers for raising and defending actions in his local sheriff court.163 From 1803, there is regular correspondence between the firm and Robert Grahame’s brother, James, an advocate in Edinburgh. James had formerly prac- tised as a writer to the signet and the firm sent him memorials seeking his legal opinion and also instructions to draft court documents, such as reclaiming petitions. In one case, concerning a bankrupt tenant, Mitchell asked him to send a copy of his opinion, direct to the Kirkcudbright writer John Nairn who was the agent nearest to their mutual client. The picture presented by these letterbooks is reinforced by surviving infor- mation drawn from the accounts of another Glasgow firm, Maxwell and Smith. Archibald Smith kept daybooks, which were described as recording the
“business outlays,—office expenses,—charges of advertisements, accounts to Edinburgh agents and others employed by the company, and general disbursements in which the partners were jointly interested.”164
The firm’s business spanned the years 1782 to 1793 and, over that time, 684 firms and individuals owed them money.165 Most of these were clients. Again, the backgrounds are varied, with the usual urban occupations of flesher, skinner,
161 Ibid., fo 84–5. 162 Ibid., T-MJ/48, fol. 14. 163 E.g. T-MJ/47, fols. 89–90. 164 nrs, Court of Session, productions in processes, CS96/104, fol. 15. 165 Ibid., Appendix 1, “List of Accounts due to Messrs Maxwell & Smith during their partner- ship as appearing in their Books,” fols. 53–78.
166 nrs, Letterbooks of Duncan Campbell, GD1/205/6. 167 nrs, Privy seal records, PS3/10, fol. 395. He succeeded David Stewart as commissary. 168 nrs, Papers of Rev. Dr Archibald McLea, Rothesay, GD1/456/204, 9.
169 aslp, Arniston, vol. 152, no. 33, p. 15; Pitfour collection, vol. 5, no. 4, p. 4; Hamilton-Gordon, 1st collection, vol 12, no. 7, The Petition of Mr James Baillie and anr, 8 June 1741, p. 3; nls, Delvine papers, ms 1995, fol. 73; ibid., Yester papers, ms 7045, fol. 86r. 170 alsp, Hamilton Gordon collection, 1st collection, vol. 3, nos 13–15. 171 alsp, Pitfour collection, vol. 59, no. 15; Swinton collection, vol. 9, no. 21, Answers, p. 4.
I must be a bade [sic] scholar in the service of near 30 year in your family affairs, if I have not some notion of what is proper & fitting for it.174
On the other hand, estate management had its pitfalls. William Innes ws man- aged the affairs of Sir Robert Gordon of Gordonstoun, who had a sizeable estate, before later being appointed in March 1711, as chamberlain to Anne, duchess of Buccleuch, for the lordship of Dalkeith, the barony of Eastpark and the lands of Cartmore in Fife.175 Estates in Inveresk and Musselburgh were later added to his charge.176 Innes’s work for the Gordonstoun estate eventu- ally brought him into conflict with the heir to the estate; by then, however, his involvement in the Buccleuch estates proved to be financially ruinous, due
172 nrs, Gordon Castle papers, GD44/43/19/37/1. 173 On Nairn and Gray see nls, Saltoun papers, ms 16656, fols. 126, 128. Nairn, admitted in 1716, was reguarly advocate for the poor and one of the public examinators for the Faculty of Advocates, but may not have had extensive private practice. 174 nrs, Gordon Castle papers, GD44/43/19/14. 175 alsp, Hamilton-Gordon, 1st collection, vol. 31, no. 22, Answers for William Innes Writer to the Signet to the Petition of Sir Robert Gordon of Gordonstoun, 22 Jan. 1729, p.1. 176 nrs, Papers of the Montague-Douglas-Scott family, dukes of Buccleuch, GD224/389/9/1.
177 nrs, Skene, Edwards and Garson, solicitors, papers, GD244/389/9/44. 178 Walter Laing was chamberlain of the estates from the 1730s to the 1750s: nrs, GD237/22/16/18; Finlay, ed. arnp, i, no. 1389. 179 nrs, Papers of the Montague-Douglas-Scott family, dukes of Buccleugh, GD224/930/5; see also GD224/918; GD224/930/3-4, 8; GD224/1130/73. 180 nls, Yester papers, ms 7045, fol. See above, page 180. 181 Three letterbooks are held privately in the offices of Iain Smith & Partners ws in Galashiels. I am grateful to Greig McDonell for facilitating access to them. 182 Amos himself seems later to have been an agent for the Leith Banking Company (he was a partner in 1829) and Craig may have been instructed by the bank to investigate his background.
his age, business, respectability, married or unmarried, his connections, when he settled at Langholm, was he ever in partnership, with whom, the cause of the separation, & anything else that may occur to you as useful for me to know.
Early the following year he then made use of Scot, sending him instructions for raising an action in the sheriff court of Dumfries. Clearly, Craig’s information was incomplete because Craig added the following postscript:
P.S. Of course I take it for granted you are a Procurator before the Sheriff Court at Dumfries, but should you not you will be sure you employ a respectable trusty person who is.
It was an obvious thing for a lawyer to extend the range of his network by using one contact to make another.
Conclusion
How a lawyer managed matters on behalf of a client reflected on both him and his clients generally. Reputation was very important in securing a client base which it was the aim of networking to establish. Likewise patronage played its part in building confidence in an individual’s reputation, helping him attract clients and offices. The opportunities available to lawyers to defend their rights and to recover debts owing to them mirror the responsibilities which they as professional men, owed to their clients and to the public in general. The themes of this chap- ter, broad as they are, are reflected elsewhere in this book, in the relationship between a lawyer and his client, in the financial aspects of that relationship, and in the importance of lawyers acting together in societies or against external forces, such as misbehaving judges. The next chapter, with its focus on the ethical dimension of legal practice, also relates to reputation and so to the competence and honesty with which lawyers managed their own affairs and those of their clients. This is also a broad subject and although it is the focus of a single chap- ter it is an issue which also recurs elsewhere.
Fame and Life is justly by lawyers and good men esteemed equall.1
Ideas about legal ethics in eighteenth-century Scotland drew upon a European civilian tradition which centred on a few key Roman law texts.2 Lawyers’ advice to other lawyers on the proper conduct of their profession drew on their own experience but also on the writings of jurists going back to medieval lawyers, such as Guillaume Durand, Bartolus and Baldus. Ethical rules, if inspired by Rome, also bore the indelible influence of Christianity and, like legal procedure, ideas of proper conduct were drawn from religious as well as classical sources. Generations of European jurists, men such as Guy Pape (d. 1477), Matteo d’Afflitto (d. 1523) and Johannes Brunnemann (1608–72), had expanded this literature, adding concrete examples of misconduct from the courts in which they themselves had practised. Their discussions blended ethical precepts with advice on rhetoric and tactical thinking. They coupled useful common sense guidance on how to win cases and deal with clients with warnings of what conduct to avoid. By the eighteenth century, as a result of long exposure to such literature, the Scottish mindset had been thoroughly internationalised and there was little need for an expansive homegrown literature on legal ethics. It is natural to suppose that whenever questions arose over proper professional conduct, the informal opinion of experienced practitioners was sought. William Russell, commissary clerk depute of Edinburgh, answered an allegation of fraud, for example, by claiming to have acted only after consulting “the oldest Practi tioners” in Parliament House.3 Robert McQueen argued in 1765 that “the most natural and proper instruction to qualify a man to practise before any court, is to be educated by the practitioners of that court,” and such education would
1 sl, ws Society Sederunt book 1714–32, fol. 341. Fame in this context equates to fama, reputa- tion. The sentiment is a common one, found, for example, in Johannes a Sande, Decisiones Frisiae sive rerum in Suprema Frisiorum Curia (Leeuwarden: Gysbert Sybes, 1656), i.9.3 (“fama & honos vitae aequiparatus”). 2 Particularly D.3.1 and C.2.7. 3 alsp, Arniston collection, vol. 47, no. 28, Answers for William Russel [sic], commissary clerk- depute of Edinburgh to the Petition of Messrs Thomas Gibson, James Justice & Ors, principal clerks of Session, 11 July 1760.
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300854 154 chapter 5 have extended to matters of ethical propriety as much as to the substance of the law and procedure.4
Ius commune Background
The content of ethical duties could be succinctly expressed. This is clear from a few random examples drawn from the work of the Italian, Antonio Maria Corasi (fl. 1574), author of a treatise discussing the common opinions of lead- ing doctors of law.5 One simple precept was that where an advocate was pro- moted to judge, he was immediately regarded as partial so far as his previous clients were concerned. Therefore he should not hear any case in which he had originally been counsel.6 Another stated that an advocate who fraudulently defends an unjust cause harms the client whose interests he was supposed to protect.7 According to Corasi, advocates and procurators should honour judges by choosing appropriate forms of address in their arguments, such as “learned”, “excellent” or “renowned.”8 Many such propositions were self-evident even if, in different legal cultures, they were sometimes given distinctive expression due to contextual differ- ences. Italian court pleadings of the eighteenth century, for example, have a different look and form to those in contemporary Scottish courts, but they share fundamental similarities and the underlying assumptions of profes- sional conduct were largely the same.9 Corasi himself seems not to have been much cited in Scotland but jurists, such as Farinacci (1544–1618) and Giulio Claro (1525–1575), whose works were regularly used in Scottish pleadings, cited him and similar authors.
4 alsp, Arniston collection, vol. 80, no. 24, Information for Charles Hogg, Dionysius Thomson, and Alexander Neilson, Procurators of Leith, Defenders; against John Young Writer in Edinburgh, Pursuer, 17 Dec. 1765, p. 6. 5 Antonio Maria Corasi (Coratio), Tractatus de Communi v.i. Doctorum Opinione (Cologne: Johann Gymnich, 1584). 6 Ibid., p. 135, n. 148. 7 Ibid., p. 239, no 7. Where there was doubt, ignorance, rather than evil intent, was to be pre- sumed on the part of the advocate. 8 Ibid., p. 228, n. 173. An example would be a phrase such as “Illustrissimi ed Eccellentissimi Signori.” 9 Cf., for example, the nine volumes of opinions in the David Murray collection: gul, Spec. Coll., Mu17-y.3-11, Collection of Pleadings in Italian Law cases. I have also examined a few pleadings in the Archivo di Stato Cagliari, in Sardinia, and must thank my friend Alessandra Pili for assisting with this.
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A shared frame of reference meant that the same metaphors and idioms were often used in the discussion of ethical questions. Across Europe, lawyers were regularly compared to priests, physicians or soldiers, depending on the particular rights or duties that were being emphasised.10 It was as much in a client’s interest to confide all his secrets to a lawyer, as it was to do so to his physician or priest.11 The damage that could be done by an inexpert medical man was compared to that which an inexperienced or faithless advocate could do.12 The duty of an advocate not to desert a client in mid-case was compared to that of a physician not to give up a treatment once begun.13 Aside from the military terms so beloved of lawyers in their correspondence, in metaphorical terms advocates could be considered the last line of defence and, like soldiers, had to make decisions about whether a cause was just and worth fighting for. A good illustration of this latter parallel was the question of whether a sol- dier might employ a ruse de guerre, a trick which might be used to get the bet- ter of his enemy. Giovanni da Legnano (c.1320–1383), in his treatise on the laws of war, argued (claiming the support of St Thomas Aquinas) that deliberately hiding one’s intentions was a legitimate form of deceit, but that it was always unlawful to deceive by making a false statement.14 Another Italian, Egidio Bossi (1488–1546), made a similar point about lawyers: an advocate could legit- imately use trickery when his adversary pursued an unjust cause, but it was never permissible to provide false evidence or to swear a false oath. Bossi was much quoted by later writers. In Scotland, Andrew Mcdouall clearly echoed his words, two centuries later, when he acknowledged that an advocate “may use
10 See, explicitly, Matthias Berlich (1586–1638), Pars prima conclusionum practicabilium (Leipzig: Henning Grosse, 1651), 9.15 (vol. i, 34). 11 E.g. Pierfilippo Corneo (c. 1419–1492), In primam codicis partem Commentarius (Lyon: Jacques Junti, 1553), 51b. The comparison is a limited one. A client has more influence over a lawyer than a patient does over a doctor; and, in litigation, the lawyer is partisan. See, for example, Rueschemeyer, Lawyers and their Society, 19–24. 12 E.g. Bartolus de Saxoferrato (1313/4-1357), Commentaria in tres libros codicis (Lyon, Claude Servain, 1555) 10.53.9 (iii, 29); Pierre de Belleperche, Repetitio l. Exigendi 12 C. De Procura toribus in Vitus Polantus, ed. À Bella Pertica, Iurisconsulti Vetustissimi Ac Subtilissimi, In Aliquot Digesti Veteris Leges Commentaria (Frankfurt: Georg Rab, 1571), 13. Alfonso de Azevedo, Commentariorum ivris civilis in Hispaniae Regias constitutiones tomi sex (Douai: Balthazar Bellère, 1612), 153, n. 2. 13 Azevedo, Commentariorum, 163. 14 Giovanni da Legnano, Tractatus de Bello, de Represaliis et de Duello, ed. T.E. Holland (Oxford: Printed for the Carnegie Institution of Washington at the Oxford University Press, 1917), cap. lxii, 125.
300854 156 chapter 5 art to elude the artifice and cavils of his adversary… But he must by all means abstain from advancing untruths, calumnies, or reflections.”15 The Frisian lawyer Jacques van Bourits (Bouricius) (1544–1622), in his trea- tise De Officio Advocati, written in 1604, had much to say on lawyers’ duties. While this work was rarely cited in Scotland, Charles Areskine owned a copy of the 1650 edition, Andrew Fletcher of Saltoun and Lord George Douglas also owned the work, and three editions of the text appear in the nineteenth-century catalogue of the Advocates’ Library.16 Van Bourits advised his fellow advocates to weigh carefully the merits of any action and, before presenting it in court, to ensure that it was just. It was wise to take a questioning and sceptical approach and to listen carefully to the client when seeking to ascertain all the facts.17 According to him, to act in an unjust way, for an advocate as for anyone else, would be an “abomination” in the eyes of God.18 It was also inconsistent with the oaths which an advocate had to swear and respect: the oath de calumnia and the oath de fideli administratione. In a student dissertation on the conscience of the advocate, the seventeenth- century German Ephraim Nazius emphasized how important it was that advo- cates should say or do nothing that could harm their clients. He summed this up with the advice that the advocate should be truthful in his language, careful in his advice, faithful in his defence and fair in his judgement.19 Nazius drew upon a tradition with which the Scots were entirely familiar and, in this chap- ter, we will examine the impact of the dictates of that tradition on eighteenth- century advocates and writers.
15 Bankton, Inst. iv.3.9. 16 K.G. Baston, “The library of Charles Areskine (1680–1763): Scottish lawyers and book col- lecting, 1700–1760” (2 vols, PhD diss., University of Edinburgh, 2011), ii, 144; P.J.M. Willems, Biblotheca Fletcheriana or, The extraordinary library of Andrew Fletcher of Saltoun (Wasenaar: Privately published, 1999), 39; William A. Kelly, The Library of Lord George Douglas (ca. 1667/8?–1693?): An Early Donation to the Advocates Library (Cambridge: lp Publications, 1997), 40; Catalogue of the Printed Books in the Library of the Faculty of Advocates (7 vols, Edinburgh: William Blackwood and Sons, 1867–1879), i, 624. A fourth edition, published in Harlingen in 1668, is attributed to Joannes Bouricius (1623–1671) in the Catalogue. A fifth copy, an edition of 1650 from the library of Lord MacMillan, is now in the library. Van Bourits was cited by Charles Hamilton-Gordon in 1749, on the question of whether an acknowledgement of a fact by a lawyer could hurt his client: alsp, Kilkerran collection, vol. 16, The Petition of Alexander Clark, writer in Inverness, 18 Jan. 1749, p. 6. See also Chapter 1. 17 Van Bourits (Bouricius), De Officio Advocati, c. 10. 18 Deut. 26: 16; also Deut. 16: 20. 19 Ephraim Nazius, Dissertatio de Conscientia advocati (Frankfurt: Heirs of Johann Ernst, 1677), n. 66.
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Ethical Practice
Lawyers, then as now, were generally cautious by nature. While they occasion- ally took risks, normally they avoided gambling with their clients’ property or their own reputation in business and it was important to them to maintain trust within their own community of practice. Lord Grange, for example, regarded James Boswell of Auchinleck as an “impudent, dangerous man” who had lost the respect and trust of his fellow advocates.20 This private opinion may not have been widely shared; it certainly did not stop Boswell attracting clients. To that end, what mattered most was gaining and retaining the confi- dence of law agents. This was as true for advocates at the top of the profession as it was for local messengers-at-arms at the bottom. When the Glasgow writer Claud Marshall wrote acerbically to a local messenger in 1772, the recipient took offence and reminded him that
since I have been in publick business I allways endeavoured to give as little reason of complaints as possible, and flatter my self to believe I had my employers interest at heart.21
This interest, he claimed, he had always tried to secure. Marshall, to his credit, wrote back in apologetic terms. While correspondence can betray sharp practice, or contain allegations of misbehaviour, it sometimes provides only one-sided or ambiguous evidence. An example is a letter to the Inveraray writer Gilbert Eidington from a corre- spondent in 1708. The writer expressed satisfaction that Eidington was “going along with” instructions from a rival client whose mandate he had received first, “especially since I know ye may doe me more service be [by] being seem- ingly my Antagonist, een [even] tho I have imployed you my self.”22 The fact that Eidington was instructed not to let a certain person see the letter, “lest he misconstruct” it, raises the suspicion, though no more, that he was betraying one client in the interests of another.23 Most lawyers were certainly aware of the difference between proper and improper practice and where the boundary lay in between. Lawyers who held
20 nrs, Mar and Kellie papers, GD124/15/981. This Boswell was the grandfather of the more famous advocate, biographer and diarist of the same name. 21 nrs, Papers of Alexander McAlester, SC54/22/9/6-7. 22 nrs, Sheriff Court of Argyll, SC54/23/10/3. 23 If so, this would be an example of ambidexterity (see infra).
300854 158 chapter 5 particular offices were also aware of the need to act carefully in their private and business affairs. As Charles Gordon noted of the advocate David Dalrymple, procurator for the Church, his role required particular management and he had to be “exceedingly circumspect in his Deportment” in order to carry it out.24
Duties
Lawyers owed two sets of duties: the first, governed by rules of professional etiquette, were owed to members of the court in which they worked; the sec- ond, professional ethics, were obligations they held to their clients and to lay members of the public.25 Court practitioners were primarily subject to the dis- cipline of the presiding judge in the court in which they worked and, ultimately, to the authority of the lords of session who exercised a supervisory jurisdiction (reinforced directly by the king in 1676).26 While often discussed in relation to advocates, these duties applied equally to procurators in the local courts. They can be found expressed in Acts of Sederunt in the Court of Session and in the regulations of inferior courts; in the rules laid down by legal societies; in the writings of contemporary Scots lawyers; and in the pleadings of actual cases where misconduct was alleged. In 1764, the Society of Advocates in Aberdeen laid down twenty-three “Golden Rules” for professional conduct, including exhortations to love peace, despise corruption and avoid covetousness.27 The counterpoint to the virtues of the advocate, so often emphasised by legal writers, were the sins that such men should avoid. This included ambi- dexterity (appearing for, or taking fees from, both sides); calumny (bringing a case which the lawyer knew lacked merit or was unnecessary); prevarica- tion (colluding with an opposing party against the interests of one’s client); protraction (causing delay by illegitimate means); buying pleas (defrauding prospective clients); assisting a client to defraud his creditors; entering into a pactum de quota litis (arranging a contingency fee); soliciting judges (private lobbying of members of the court in the interests of the lawyer or his client);
24 nrs, Huntly and Gordon papers, GD44/43/37/8. On lawyers for the church, see Duncan Shaw, The General Assemblies of the Church of Scotland, 1560–1600 (Edinburgh: St Andrew Press, 1964), 150–155. 25 Cf. Daniel Duman, The English and Colonial Bars in the Nineteenth Century (London: Croom Helm, 1983), 72, n. 29. 26 Acts of Sederunt 1553–1790, 125 (20 June 1676). 27 John Alexander Henderson, History of the Society of Advocates in Aberdeen (Aberdeen: Printed for Aberdeen University, 1912), ix–x.
300854 Ethics And Etiquette 159 refusing to act for the poor (regarded as a mortal sin by some continental writ- ers); suborning perjury; forgery; showing disrespect to the court, and using intemperate or improper language in pleadings. All of these practices were alleged in Scotland during the eighteenth century.28 The forms of penalty that were typically used judicially to deter and punish such activities were public rebuke, fine, suspension, imprisonment and disbar- ment.29 Normally, misdemeanours were dealt with by fine and suspension but, in a number of cases in the Court of Session, advocates and others were impris- oned or even whipped through the streets or otherwise publicly humiliated. Judges had a sense of theatre and recognised the deterrent effect of making an example. Van Bourits relates the story of a friend of his who, for writing an insulting and injurious court paper, which offended the president of the Grand Conseil de Malines, was forced to issue a grovelling apology in front of his assembled colleagues and to tear up the offending petition.30 Similar humilia- tion was visited on the advocate John Maxwell in the Court of Session in 1649, when his colleagues and their servants were required to watch as a macer was ordered to “rent his goun in sunder, and pull it over his shoulders” before Maxwell was fined and sent off to prison for the offence of buying a plea.31 On the other hand, the formal “striking off” of a lawyer from a roll or register is rarely found in eighteenth-century Scotland.32 Later court books do have lines drawn through names and references to the date when the lawyer con- cerned was struck off.33 Prior to W.H. Thomson being “expunged from the list of the Faculty” in 1872, following a conviction for forgery, the clerk to the
28 Not all of them can be discussed in this chapter. On ambidexterity, see Finlay, “Advocacy, patronage and character,” 97–8. On assisting a client to defraud creditors, see ibid., “Corruption, regionalism and legal practice,” 157–9; on protraction, see ibid., “The history of delay in civil procedure: Scotland 1600–1808,” in C.H. van Rhee, ed. The History of Delay in Civil Procedure (Berlin: Duncker und Humblot, 2010), 135–7. On buying pleas, see above, page 106. 29 Private penalties could be exerted, such as loss of a pension for assisting in a process against the client: see Information for Normand Macleod of that Ilk against Mr Alexander M’Leod Advocate, 31 Jan. 1730, Hamilton-Gordon collection, 1st collection, no. 17, p. 17. 30 Van Bourits (Bouricius), De Officio Advocati, c.11. 31 Acts of Sederunt 1553–1790, 60; Finlay, “Ethics, etiquette and the early modern Scots advo- cate,” 162–3. 32 An example, in Aberdeen, is that of George Bean and James Duff, “struck off from the list of the Society of Procurators” in 1789 for unpaid arrears of contributions: acaa, Society of Advocates, Sederunt book 1777–1799, D528/2/1, 24 Nov. 1789. 33 E.g. nrs, “The Register of Procurators before the sheriff court of Forfarshire made out by the sheriff clerk in terms of the Procurators (Scotland) Act 1865”, SC45/12/1, records Robert Gloag being struck off 22 Oct. 1936. See also, The Edinburgh Gazette, 3 Nov. 1936, 927.
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Faculty of Advocates reported that he had only found one earlier example of this procedure, that of Thomas Muir in 1793 after sentence of fugitation in the High Court.34 Muir’s name was not physically struck off in the Books of Sederunt however.35 In contrast, in 1788 the Society of Advocates in Aberdeen threatened to have George Bean’s name “struck off the List of the Society” if he failed within six months to make good arrears which he owed.36 An effective equivalent of being struck off a court or central register was a sentence of infamy. As ius commune commentators never tired of noting, the office of advocate was praiseworthy (laudabile) and the infamous (infames) were barred from it.37 No one made infamous in Scotland could act as a judge. Under a 1579 statute inspired by Roman law, any lord of session or his servant who gave partial counsel, that is consulted with either party or, directly or indi- rectly, took bribes, was punishable by infamy and confiscation of his moveable property.38 So far as advocates were concerned, the nuances of Roman infamia were not fully received in Scotland where the concept implied complete dis- barment, rather than a restriction on the right to make applications to the judge.39 In Roman law an advocate could be specifically barred from a magis- trate’s court for the duration of the particular magistrate’s tenure of office but there is no evidence of such a rule in Scotland.40 On the other hand, prohibi- tions for a prescribed period of time, also noted in Roman sources, were used and lawyers were prevented from practising for a period of months or until a fine was paid.41
Etiquette
In terms of etiquette, lawyers were encouraged to respect members of their pro- fession. Those who practised in the inferior courts, just as much as members of
34 al, Faculty records, FR9, fols. 204–6; Stewart and Parratt, ed. Faculty Minute Book 1783–1798, 157. The clerk missed at least one other who was struck off, Edward Armstrong (ibid., 135). On Muir, see Christina Bewley, Muir of Huntershill (Oxford: Oxford University Press, 1981). 35 nrs, Books of sederunt, CS1/19, fol. 59v. 36 acaa, Society of Advocates, Sederunt book 1777–1799, D528/2/1, 25 Nov. 1788. 37 Bartolus, Commentaria in tres libros codicis, 78. 38 rps, 1579/10/55, Act anent the admissioun of the ordiner lordis etc. 39 D.3.1.1.8; John A. Crook, Legal Advocacy in the Roman World (London: Duckworth, 1995), 159–160. 40 D.3.1.6.1. 41 D.3.1.1.8.
300854 Ethics And Etiquette 161 the Faculty of Advocates and the ws Society, saw themselves as members of a “brotherhood.” Ulpian’s metaphor of lawyers as priests, set out at the beginning of Justinian’s Digest, strongly influenced medieval and early modern attitudes and writers often saw advocates as initiates in the mysteries of the law, secular “priests of Themis”, who worshipped at the altar of Justice.42 Such semi-sacerdotal references, in relation to a secular profession, are testimony to the continuing aesthetic and power of what has been called “the original religious matrix”, or the conventional understanding of the world in religious terms.43 In a more practical sense, Scots lawyers readily identified with colleagues as professional brethren. A particularly interesting example is Duncan Campbell’s reference to one of his fellow procurators in the sheriff court at Inveraray as “a Brother of the Quill” and a young apprentice who was “breeding to the quill.”44 A central concern of continental treatise writers was that lawyers should not insult or interrupt each other in the courtroom. Maintaining respectful behaviour preserved the “dignity and authority” of the court and there was civilian authority for the proposition that every judge had a discretionary power to punish indecent behaviour in a summary manner, although in the inferior courts any such punishment might be reviewed by the Court of Session.45 What the rules of etiquette demanded was not always clear and underwent development. The strong civilian ethos of the seventeenth century was eventu- ally supplemented, by the end of the eighteenth century, by influence from English practice. This is clearly marked in an 1804 report of a ws Society com- mittee, examining the fee structure of the Society’s members which contained liberal references to practice in England.46 While the Scots were prepared to look south, they were not always inclined to adopt English practice. As late as 1870, some doubt was expressed on whether a client might directly approach counsel. The rule, as understood by a contributor to the Journal of Jurisprudence, was that the intervention of an agent was only necessary where there was actual litigation. The practice permitted in England of an accused person directly instructing counsel was rejected in Scotland, as something “not gener- ally adopted by reputable members of the profession.”47
42 See Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, 1957), 101–2 43 Gianfranco Poggi, Forms of Power (Cambridge: Polity, 2001), 100. 44 nrs, Letterbooks of Duncan Campbell, writer in Inveraray, GD1/205/6, ii, fols. 89, 148. 45 D.2.1.2; Prospero Farinacci (1544–1618), Opera Criminalia Omnia (Frankfurt am Main: Zacharias Palthenius, 1606), vol. 1, q. 1. n. 57; alsp, Miscellaneous collection, series vii, Information for the Reverend Mr James Wemyss and others, 22 Apr. 1785, p. 6. 46 sl, “Report of the committee on fees, 1804.” 47 Anon., “Rules of Professional Etiquette,” Journal of Jurisprudence 14 (1870): 148–9.
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In civil litigation the principle was clear that counsel could not be retained to appear nor draft a pleading unless instructed by an agent qualified to prac- tise in the court to which the retainer applied. Beyond that, in terms of simply giving opinions, the intervention of an agent was not strictly required, although it was always recommended to have a case prepared by one. By contrast, eighteenth-century practice may have been more relaxed. Agents were nor- mally present at consultations but counsel communicated quite freely with their more important clients by letter. Some rules of etiquette were professionally understood and virtually unspo- ken, others were almost carved in stone. An example of the latter was the injunction upon advocates to set aside any personal differences with others at the bar and, when a client’s interests required, enter into joint consultations with them. Any counsel on “account of personal prejudice, or any other pre- tence” who refused to concur with their brethren were punishable: clients were not, by such means, to be deprived of the benefit of their joint advice.48 There were also issues of conduct that might affect the wider reputation of the profession. For example, the failure to control boisterous behaviour amongst young apprentices and clerks, attempts to misuse the privileges of the College of Justice to import wine into Edinburgh free of customs, or, of which advo- cates were accused in the seventeenth century, improperly authorising men to act as agents who were not their servants.49
Abuses
To return to the question of ethics, a range of abuses was alleged in legal plead- ings, punished in the courts, and mentioned in correspondence. It is impossi- ble to discuss them all at length, however analysis of some of the more significant categories provides a general picture of professional misbehaviour and the response to it. Some lawyers were in a stronger position than others to commit abuses. Roderick Mackenzie, for example, was accused of abusing his appointment as advocate depute (that is, as a crown prosecutor) on the western circuit in 1685 in order to bring pressure on Robert Boyd to compromise on debts owed to a third party.50 Boyd alleged he was imprisoned unjustly and subjected to
48 Acts of Sederunt 1553–1790, 132–3 (7 June 1677). 49 Finlay, Community of the College of Justice, 5; Pinkerton, ed. Faculty Minute Book 1660–1712, 83. 50 alsp, Forbes collection, vol. 6, Information for Mr Roberick McKenzie Advocat against Robert Boyd of Trochrig and his Factor, n.d., p. 5733.
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concussion (“metus injectus a Magistratu” – fear imposed by a magistrate), concussion being a particular species of force and fear recognised in Roman law.51 This was a very rare allegation and the evidence was weak, but Mackenzie, in making a vigorous defence, would have been well aware that the mere sug- gestion of such dishonourable conduct needed a response.
Calumny
According to an Act of Parliament in 1430, the oath de calumnia was originally sworn by counsel and by the parties, if present, at the commencement of an action.52 In substance it was an oath that the swearer believed in the justness of the cause he pursued and the truth of the facts he asserted. In eighteenth- century practice, the oath was only ever given by a party when demanded by his opponent or the judge, and it was never demanded of counsel.53 According to Ilay Campbell, the oath de fideli administratione given by advocates on their admission was regarded as “a sufficient Check upon them.”54 Nor did counsel any longer swear on behalf of an absent client (in animum clientis); the client had to take the oath personally. This reflected the reality that counsel was only ever in a position to swear on the basis of information presented by his client; therefore the adverse party was always entitled to have the client himself take the oath of calumny.55 This requirement provided a legitimate opportunity for tactical delay if, for example, the pursuer was known to be abroad. There are examples in the sixteenth century of the oath being sworn at both the request of a party and by order of the lords of session.56 According to Bell’s Dictionary, the oath of calumny was little used after 1715. In that year, an Act of Sederunt required a party or his counsel to affirm or deny any matter of fact
51 D.47.13 (concussio). 52 rps, 1430/20, “Oath of Calumny Act.” For background, see David Baird Smith, “A note on juramentum calumniae,” Juridical Review 51 (1939): 7. 53 It was demanded of counsel in the sixteenth century, e.g. nrs, Books of sederunt, CS1/1, fol. 109r (29 Mar. 1555). From 1577, however, it was not competent for the oath to be given by proxy: Michael P. Clanchy, “A further note on juramentum calumniae,” Juridical Review (1986): 174. The 1430 Act was found to be obsolete in the case of McQueen, 20 Dec 1754, 5 Br. Sup., 902. 54 alsp, Arniston collection, vol. 51, no. 2, The Petition of Captain John Byron, Commander of his Majesty’s Ship The Fame, and the Honourable George Murray, Esq; his Attorney, 15 Jul. 1760, p. 8. 55 Stair, Inst., iv.45.18. 56 E.g., nrs, Register of Acts and Decreets, 1st ser., CS7/52, fo 40r; CS7/50, fol. 5r.
300854 164 chapter 5 that he offered to prove with the proviso that should any matter be denied, which it was later proven to have been known, then the party would be liable without modification for the expenses to which his opponent had been put as a result of the calumny.57 Examples of it, however, can still be found. In 1745, for example, William Black was ordered by the bailies of regality of Dunfermline, to produce his client in court to swear the oath.58 This was done for the sake of convenience because the defenders, before themselves deponing on oath, wanted the pursuer to swear that he had “just ground to insist” for their own depositions. In fact, the pursuer was excused from giving the oath when the bailies examined the written evidence he had presented alongside his libel.
Insult
When it came to pleading Scots lawyers, to some extent, lived in the shadow of Sir George Mackenzie of Rosehaugh, a man of European reputation as a scholar, poet and jurist, who had been dean of the Faculty of Advocates at a particularly important point in its history.59 The ethos of Mackenzie is evident in the social and professional outlook of the bar long beyond his own lifetime because his legal writings continued to be used and studied by the profession. Mackenzie’s Institutions was the first primer on Scots law for generations of advocates, and other works, particularly his treatise on criminal law and his observations on the statutes, were of practical use to lawyers at all levels. His published pleadings stood as an example of eloquence to be admired and copied by others.60 In his essay, “What Eloquence is Fit for the Bar”, Mackenzie offered a num- ber of suggestions to counsel on how best to convince the lords of session of the merits of a case. For instance, he advised that
Railing is of all other Qualities the worst in a Pleader; for it makes men judge that his Cause needs it, when he rails against his adverse Client, and that he finds himself worsted, when he rails against his adverse Advocate.61
57 Acts of Sederunt 1553–1790, 261 (1 Feb. 1715); G. Watson, ed. Bell’s Dictionary and Digest of the Law of Scotland (7th edn, Edinburgh: Bell & Bradfute, 1890), 143. 58 nrs, Regality of Dunfermline court book, RH11/27/14, fols. 124, 125–126. 59 On Mackenzie, see Hector L. MacQueen, “Mackenzie’s Institutions in Scottish Legal History” 29 (1984) Journal of the Law Society of Scotland, 498; Clare Jackson, “Mackenzie, Sir George, of Rosehaugh (1636/1638–1691),” Oxford Dictionary of National Biography. 60 Beth Innocenti Manolescu, “George Mackenzie on Scottish Judicial Rhetoric” 20 (2002) Rhetorica, 375–389. 61 Sir George Mackenzie, ‘What Eloquence is Fit for the Bar’, in ibid., Works, II, 16.
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Sometimes, of course, counsel had to be severe in the examination of wit- nesses, or in the “arduous” activity of stating or answering objections to them, or in otherwise presenting hard facts to the court.62 Charles Hamilton-Gordon acknowledged his duty to make “such Observations upon the Depositions or Declarations of Witnesses, as may tend to invalidate their Testimony” but observed that “no Counsel ought wantonly to go out of his Road, to injure the Reputation of a third Party.”63 Oral debate before the judges, in civil or criminal practice, does not attract a great deal of comment in sources unless it was unusually prolonged or heated.64 In a procedure that was primarily written, the opportunities for eloquent oral pleading, and for effective cross-examination of witnesses (written interrogatories were generally used), were limited. The demands of the civil and criminal bars were different. According to Ramsay of Ochter tyre, James Ferguson of Pitfour succeeded better in one category than the other because his pleading, effective before the lords of session in civil cases, was too refined for juries, who had to be carried “by surprise, or by a blaze of eloquence.”65 The fireworks, or theatrics, of an Alexander Lockhart succeeded better in that context. At the same time, written pleadings provided great opportunities to weave into an argument some subtle and considered insults. In the age of Addisonian politeness, the best counsel could hold a witness or litigant up to contempt, or excuse the peccadilloes of a client, by means of humour. Hence the client “who, when in liquor, did not sufficiently avoid the company of loose women”; or the pregnant servant who, as an adverse party, was described as “very hon- est from the apron-strings upwards”; or James Wilson, the Glasgow writer, who was “not extremely scrupulous, where money was to be come at.”66 If an insult was too strong, of course, then counsel risked losing the sympathy of the judges. The longest-serving lord of session in eighteenth-century Scotland, David Erskine of Dun, gave advice to counsel that echoed much to be found in ius commune literature. Advocates must fully acquaint themselves with a case
62 nrs, Letterbooks of Duncan Campbell, writer in Inveraray, GD1/205/6, ii, fol. 132. 63 alsp, Arniston collection, vol. 41, no. 17, Answers for Charles Hamilton-Gordon to Petition of John Marshall Writer in Strathaven, 26 Jan. 1758, p. 6. 64 E.g. Finlay, Community of the College of Justice, 136. 65 Ramsay of Ochtertyre, Scotland and Scotsmen, i, 151. 66 alsp, Arniston vol. 79, no. 35, Information for John Fairie, smith in Rutherglen, defender, against Mary Barr, 22 Feb. 1765, p. 3; Miscellaneous collection, ser. 3, vol. (1774–77), The Petition of William Copland, Esq. of Collieston, 21 Feb. 1775, p.3; The Petition of Daniel Burrel of Annathill, Dancing Master in Glasgow, 19 Jul. 1744, Kilkerran collection, vol. 10, no. 67.
300854 166 chapter 5 before giving advice and if the case “appears unjust and illegal, his duty is, to dissuade and discourage the client from insisting on it.”67 One of the “Golden Rules” in Aberdeen was that the procurator should
examine well in the beginning that the cause we take in hand (we have reason to believe) is just; at least that it is not obviously unjust.68
This was a simpler analysis than that of, for example, Ulric Huber, who distin- guished between the need to withdraw abruptly from a case that was bad because it was clearly contrary to established law (contra jus certum), and what to do in a matter where the advocate was personally unsympathetic but the law was in controversy.69 Andrew McDouall, one of the most successful advocates of his generation before his late admission to the bench, advised his brethren to rely when plead- ing on the strength of argument, rather than the “colouring of eloquence”, because an advocate’s words were directed, not to a popular assembly, but to “a bench of learned judges.”70 There was a fine line between using robust lan- guage and lapsing into insolence. Bartolus’s advice, that an advocate should not insult parties, was often ignored and in courts at all levels there were com- plaints about the language pleaders used.71 This was always the lawyer’s responsibility but it was not not always his choice, insofar as clients might insist on questionable allegations being made. In one case, it was alleged that the advocate who signed a petition had privately admitted that a story, regarded as “calumnious”, was wrongly included because he “was pressed” to include it at his client’s insistence.72 Insults could spill over into accusations against the lawyer of personal ani- mosity. In a case in 1745 it was suggested that in a paper he had drawn Alexander Boswell. appeared “to have as much at heart a private Resentment…as the
67 Erskine of Dun, David, Lord Dun’s Friendly and Familiar Advices Adapted to the Various Stations and Conditions of Life, and the Mutual Relations to Be Observed amongst Them (Edinburgh: Printed for G. Hamilton and J. Balfour, 1754), 29. 68 Henderson, Society of Advocates in Aberdeen, x. 69 Ulric Huber and Christian Thomasius, Ulrici Huberi Praelectiones Juris Civilis Secundum Institutiones & Digesta Justiniani (3rd ed., 2 vols, Utrecht: Willem Broedelet, 1711), ii, 166 (3.1.11). 70 Bankton, Inst. iv.3.9. 71 Bartolus, Commentaria in tres libros codicis, 2.6.3 (p. 78). 72 alsp, Miscellaneous collection, ser. 17, vol. (1734–5), Answers for William Seton ws To the Petition of Mris [sic] Mary Long, 10 Feb. 1736, p. 3.
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Interest of his Clients.”73 Personal feuds could result from litigation and law- yers could find themselves on the receiving end of abuse from disgruntled liti- gants or witnesses.74 In criminal cases, in particular, advocates successful in that sphere of practice, according to John Ramsay of Ochtertyre, “often went further than honour or conscience warranted” in addressing juries in the inter- ests of notorious criminals.75 Despite the Society of Advocates’ “Golden Rules” of conduct, which included the avoidance of dissension, the sheriff substitute of Aberdeen thought it appropriate in 1785 to offer praise because he had not found “a single paper wrote in an improper or petulant stile, a circumstance much to the Honour of the Procurators” in his court.76 It says much that the sheriff was moved to offer his thanks for such meritorious conduct, which he thought himself specifically “called upon to notice.” Less meritoriously, away from the courtroom, lawyers, particularly in burghs, sometimes engaged in threatening and abusive conduct, often fuelled by alco- hol, directed towards local magistrates. Town council minutes frequently record the complaints of councillors and magistrates who found themselves subject to mockery and it is surprising how often the culprits were members of the legal profession.77 The hard-drinking culture of lawyers and judges in Edinburgh and on the criminal circuit, often remarked upon, had its counter- part amongst local practitioners.78 The Fraternity of Writers in Stirling even had to make an enactment in 1706 that any member who, while appearing before a judge, “shall be found drunk or misbehave”, would be instantly fined.79
Enforcement
Most Scots lawyers, as a result of their training, were fully aware of the ethical duties that their profession imposed. Judges nevertheless regularly felt obliged
73 alsp, Falconer collection, vol. 1, Memorial and Observes for Captain John Chalmer of Gadgirth upon the Answers of James Porter and Robert Alison to the Captain’s Additional- Petition, 12 June 1745, p. 1. 74 E.g. Finlay, Community of the College of Justice, 133–4, 144–5. 75 Ramsay of Ochtertyre, Scotland and Scotsmen, i, 96–7. 76 nrs, Sheriff court of Aberdeen, diet book, SC1/2/67, fol. 202. 77 E.g. John Bushby in Dumfries: dac, Dumfries council minutes, A2/19, 1 Apr. 1771, 20 May 1771; William Bryce in Glasgow, nls, ms 17357, 145r–146v. 78 E.g. Henry Cockburn, Circuit Journeys (2nd ed., Edinburgh: D. Douglas, 1888), 73. 79 sca, Minute book of the Fraternity of Writers, PD145/1, 29 Apr. 1706.
300854 168 chapter 5 to remind them and this reflects the extent to which the judiciary looked with concern upon misbehaviour amongst lawyers in the inferior courts. When, in 1786 Donald McLeod, sheriff-depute of Ross-shire, decided to make a fundamental change in the judicial administration of his county, discipline amongst the procurators featured in his thinking or, at least, so he claimed.80 From 1 May 1786, he decided, his court would sit only at Tain, where the sheriff clerk principal had his office, and no sessions of the court would be held by the substitute at Dingwall or Fortrose. The procurators in these two smaller courts were dismayed by this sudden pronouncement and McLeod justified it on the basis that concentrating civil justice in one centre would increase the business of the court and make it a more respectable judicature. The move would mean that the court could “bear the expence of a regular legall discussion, and thereby practitioners of Eminence and merit would be induced to take up their resi- dence and give their time to the service of the County.”81 This was not an unfa- miliar aim (see below, pages 276–281). A particular motivation was the fact that having all the county’s legal practitioners in one place would greatly improve discipline. This would result in a more ethical legal practice because:
under the immediate eye of the Sheriff Depute, complaints of irregularity in their proceedings, of extortion in their charges, or of using improper means to foment differences, could meet with a more immediate hearing and be more effectually checked, than while the courts were held in three different Burroughs.82
McLeod, an experienced and assiduous sheriff with an excellent record of per- sonal attendance, apparently had little trust for the quality and honesty of some of the procurators in his county or their ability to act in a disinterested way towards their client’s affairs.83 He was not alone. “Irregularity”, “extortion” and the fomenting of disputes were familiar criticisms of lawyers; even the seventeenth-century German jurist, David Mevius, acknowledged some truth in the idea that more lawyers tended to result in more quarrels.84 The advocate
80 In fact, McLeod was quickly prevailed upon to reverse his resolution and reinstate the two local courts; institutions which a county the size of Ross-shire could ill afford to do without. 81 nrs, Sheriff court of Tain, minute books, SC34/1/3, 8 Nov. 1786. 82 Ibid. 83 See above, page 136??. 84 David Mevius (1609–1670), Commentarii in jus Lubecense libri quinque (Frankfurt am Main: Joachim Wilden, 1679), 5.2.5.4: “Quo pauciores sunt qui litibus ministrant, eo rariora
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Walter Steuart in 1761 condemned those “little dealers in the law” who pro- longed several disputes by thwarting a proposed creditors’ agreement.85 Among Lord Dun’s complaints about agents was the “abominable” practice of “hounding out and enticing parties to engage in law-suits.”86 Similar concerns seem to have been shared by McLeod’s fellow sheriff- depute, Alexander Elphinstone, in Aberdeenshire. In January 1786 he enjoined the procurators to wear gowns whilst conducting business in his court. This was not simply because the gown was a mark of distinction or a sign of entitlement, important though this was. In his opinion, with which the Society of Advocates in Aberdeen concurred, “procurators wearing gowns is a proper formality suitable in a Court of Justice, tending to promote that propriety of behaviour becoming practitioners, and to preserve good order and regularity in the proceedings.”87 The gown was thought to have a psy- chological effect by reminding the individual to exercise his public office with respect. A contrast to Donald McLeod, who was promoted from the bar in Edinburgh to a distant sheriffdom, was William Burnett, commissary of Aberdeen, who was raised from the ranks of the procurators in the court over which he began to preside. His speech to the local practitioners at the time of his promotion set a tone of diffidence and respect. For one thing, Burnett was not quite ready to give up being a procurator himself and expressed the desire to continue to practise in other courts. As a judge, he undertook through study to make him- self “master of any subject that comes before me”, although he encouraged those practising before him to point out any errors he might make. Confident that procurators would act with propriety, Burnett demanded exactness and regularity in proceedings and proper respect for oaths. He noted, with satisfac- tion, that many practitioners complied with the injunction to wear gowns in court. Yet he warned them
to avoid extraneous matter in your writings, particularly invective and satire, or even too much heat—I speak it from experience as a Procurator, that in that capacity I have been sensible of these failings.88
erunt litigia” (“the fewer are those who minister justice, the rarer legal actions will be”). Cf. Tacitus, Annals, xi.6. 85 alsp, Meadowbank collection, vol 21, no. 31, The Petition of William Mowat and Company, Merchants in Aberdeen, 30 Jul. 1761. 86 Erskine of Dun, Friendly and Familiar Advices, 44. 87 nrs, Sheriff court of Aberdeen, SC1/2/67, fol. 318. 88 acaa, Society of Advocates, Sederunt book 1777–1799, DD528/2/1, 17 Nov. 1788.
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Did lawyers really need a sheriff looking over their shoulder to resist the temp- tation to prey upon “the lower Sort of People”? Self-control was certainly not part of their stereotype, as Francis Garden acknowledged that:
there cannot be a more hurtful Plague in the Country, than a rapacious and greedy Procurator, who has Parts enough to gain the Reputation, in that Rank of Life, of a cliver Fellow, but wants Candour and Moderation, in his Passion, for Gain.89
There is plenty of evidence to counter the charge that lawyers as a class were active in encouraging litigation. Clients were regularly advised that a matter was not worth taking to court or, if a claim was to be pursued, that it be done extra-judicially. The Edinburgh writer John Murray, for example, advised John McLaine of Lochbuie in 1767 to avoid a court case with the slippery laird of Drymen:
it is not bairns play to deal with Drimmen; he is the most acute alert antagonist you have and that he inclines with all his heart to take a sleeve off your coat I think all the world must easyly see.90
Had this lengthy executry dispute been settled earlier, Murray was sure that his client would have saved £1500. As it was, he declared that
were I under such a cloud as that process seems to be I’d much rather pay the other party a sum equivalent to the expences it would cost me at law, than litigate it at all.
Legal actions were long, unpredictable and expensive, and many lawyers were unafraid to say so. William Fraser ws advised a client
I greatly approve of your keeping as much out of the parliament house as you can; I shall never encourage it and you know from experience the uncertainty of decisions in our Court.91
89 alsp, Miscellaneous collection, ser. v, vol. 4, Answers for John French Procurator-fiscal to the Sheriff-court of Aberdeen to the Petition of James Petrie Advocate in Aberdeen, 9 Jul. 1754, p. 21. The word “wants” here is in the sense of candour being wanted, that is, it is lacking. 90 nrs, Maclaine of Lochbuie papers, GD174/273/1. A bairn is a child. 91 nrs, Campbell of Dunstaffnage papers, GD202/68/1. Punctuation added. Parliament House is where the Court of Session is situated.
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Such realism was appreciated by clients, as was thrift. Gilbert Innes of Stow was assured by one correspondent in 1780 that the agent John Gordon was “a very sweetblooded lad & I can assure you [he] will be against putting you or any body to unnecessary charges.”92
Prevarication
Prevarication, a species of falsehood, was collusion between a prosecutor and an accused in order to obtain an acquittal, or between a lawyer and the adver- sary of his client.93 The essence of the crime was the betrayal of a client, although in Scotland it was sometimes conflated with perjury.94 It was a crime rarely alleged against lawyers, and not even mentioned by the Scots writers Mackenzie or Erskine, although continental authors discussed it at length. The Scottish case recorded in most detail arose in 1650 when Thomas Hunter ws was found guilty of prevarication on the basis of multiple failures of trust summed up by the general finding that he had “not walked straitlie and ingen- uouslie as becometh one quho [who] hes the trust & charge of ane member of the College of justice.”95 In particular, he had cheated his own client by sup- pressing evidence. His “craftie circumveneing & deceitfull cariage” led to his deprivation of office as a writer to the signet and a prohibition from exercising any employment in the College of Justice thereafter. There had been “manie contradictiones” in declarations Hunter made to the court. The same was true of James Muirhead, a writer found guilty in 1762 of “gross prevarication and contradiction” in relation to defences he had submitted.96 Muirhead was simi- larly declared incapable of ever again acting as an agent in Court of Session. Accusations of prevarication occasionally arose in relation to the role of the lord advocate or a procurator fiscal in giving concurrence to a prosecution in circumstances where the accused may already have consulted them with a view to employing them for the defence. The author of a supplement to William Forbes’ unpublished “Great Body of the Law of Scotland” cited the
92 nrs, Innes of Stow papers, GD113/4/116/30. 93 D.47.15.30; Huber, Praelectiones, ii, 166 (3.1.12), “ne praevaricetur, id est, proditam Clienti sui causam, partem adversam adjuvet.” 94 Examples include the glover John Bell who was sentenced in 1762 “for prevarivation and swearing falsely” (nrs, Books of sederunt, CS1/14, fol. 171r); and the tenant John Hardy, who was found guilty of prevarication in 1763 (ibid., fol. 178v). 95 nrs, Books of sederunt, CS1/5, fol. 209r–211r. 96 Ibid., CS1/14, fol. 164v; Acts of Sederunt 1553–1790, 529–30.
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Italian jurist, Prospero Farinacci, to support the view that the lord advocate was necessarily excused from “presumptive calumny” in criminal prosecution; but if it could be proved that he knowingly brought a calumnious process, he would be subject to arbitrary punishment.97 In the inferior courts, fiscals were vulnerable to accusations of misconduct and it was accepted amongst jurists that a fiscal could be condemned in expenses for bringing a calumnius action.98 Accusations against fiscals often shed light on aspects of everyday legal practice. One example arose in 1735 when John Pattison, procurator fiscal of Renfrew, sought to enforce the 1661 Act anent irregular mar- riage by prosecuting William Wilson, a tenant in Eastwood.99 It was suggested that Wilson, “under Cloud of Night, not without Suspicion of Force”, had taken Marion Fergusson to Edinburgh where he had married her, despite her having been publicly betrothed to another man in Renfrewshire. The fiscal in the burgh court in the Canongate had already prosecuted Wilson and the bailies had fined him 100 merks. Holding a receipt for the payment of this from the kirk treasurer, Wilson offered the defence of res judicata. Pattison alleged that there was collu- sion between the inferior judges and kirk treasurers in Edinburgh. The Canongate prosecution was allegedly a sham, intended only as
a manifest Collusion to elude the Law, the whole Procedure, Complaint, Citation, Sentence and Discharge by the Kirk-treasurer, is all hurried over in one Day, upon no other proof than the Suspender’s Acknowledgement of the Fact.
Pattison further alleged that the fine had not in fact been paid and that the mar- riage had not even been celebrated in the Canongate. The issue here was at least partly financial. Fines in such cases were to be applied to pious uses within the parish where the parties had resided. If a competing jurisdiction could dispose of them by underhand means, then Renfrew and other shires would lose revenue. Pattison specifically accused the fiscal in the Canongate of being party to fraud through failing to insist on a prison sentence: he had, “by this collusive Procedure”, permitted Wilson to avoid the three-month sentence prescribed by statute. Prevarication was regarded as infaming, leading to the loss of capacity to bear public office along with extraordinary penalties according to the facts
97 gul, Spec. Coll., “William Forbes, Great Body of the Law of Scotland,” ms Gen 1252, fol. 19. 98 cj 7.51.4; Brunnemann, Commentarius in duodecim libros Codicis Justinianei, 7.51.4 (p. 888). 99 alsp, Miscellaneous collection, ser. 17, vol. 1734–5, no. 196, The Petition of John Pattison, Procurator-fiscal of the Sheriff-court of Renfrew, 27 Jan. 1735; rps, 1661/1/302, Act against clandestine and unlawfull marriages. On the office of fiscal, see generally Chapter Ten.
300854 Ethics And Etiquette 173 and the rank of the guilty party. Offenders could be sentenced to the pillory or have their ear nailed to the tron while wearing a paper bearing the name of their crime.100 This penalty was also applied to perjury, as in the case of John Blackadder in 1736 and probably John Cameron in 1755, although Cameron was actually declared to be an “infamous prevaricator upon oath on Judgment” for lying in a deposition before the Court of Session.101 No lawyer appears to have been accused in the case. Charles Ferguson, con- victed of prevarication in 1749, was imprisoned although, again, he was no lawyer.102 Farinacci, who was regularly cited in Scotland, quoted from Bossi the exam- ple of an advocate in Milan whose property was forfeit and who suffered exile for prevaricating.103 What particularly animated jurists was the question of whether it was permissible for an advocate, having been consulted by one party, to give advice to the adverse party if he had changed his legal opinion, or if new facts emerged. According to the opinion of Johannes Andreae (c. 1270– 1348), an advocate could, strictly speaking, act for one side at first instance and the other side in an appeal, but such behaviour was not reputable (honestus) and should be avoided.104 Pierre de Belleperche (c. 1230–1308) had gone fur- ther, regarding such behaviour as amounting to perjury because the advocate concerned was in breach of the oath de calumnia; he was also possessed of the secrets of his client’s cause.105 The loss of capacity to bear public office was of great consequence for law- yers not only in terms of livelihood but also because of the breadth of their engagement in community life. The Linlithgow writer, John Ferrier, was elected to the town council of Linlithgow in 1751 but not without a great deal of protest because he had been found guilty of extorting clients.106 This conviction brought
100 Stair, Inst., iv. 36.8. 101 nrs, Books of sederunt, CS1/12, fol. 46v; CS1/14, fol. 52r; Acts of Sederunt 1553–1790, 487. See also a case in 1669, CS1/6/1 fol. 292. Cf also the apprentice writer, Robert Logan: alsp, Arniston collection, vol. 90, no. 2. 102 nrs, Court of Session books of sederunt, CS1/13, fol. 119r. 103 Prospero Farinacci, Praxis et Theoricae Criminalis (Frankfurt am Main: Zacharias Palthenius, 1622), De Inquisitione, 1.4.15 (p. 30). 104 See the gloss in Julii Clari Alexandrini (Giulio Claro, 1525–1575), Opera Omnia, sive Practica Civilis atque Criminalis (Lyon: Horace Boissat and Georges Remé, 1661), 5.72.16 (p. 674). Bankton gives a similar view: Inst. iv.3.13. 105 Pierre de Belleperche, Explicationes Singulares, sive, vt nunc vocant, repetitiones eiusdem (Frankfurt am Main: Georg Rab, 1571), 18 (the edition I have used is gul, Spec. Coll., Bnl6-a.2). 106 nrs, Linlithgow tcm, B48/9/11, fols. 33, 68.
300854 174 chapter 5 infamy which not only affected his reputation but, as a matter of law, prevented him from sitting as a judge or magistrate (although not as a councillor).
Crimen Falsi
Intellectually, the duty of confidentiality arose from the failure to maintain good faith with a client and to respect the oath de fideli administratione. It was linked closely to the concepts of falsehood and prevarication, both of which were sometimes confused in ius commune sources, perhaps as a legacy of an overlap of offences in Roman sources.107 According to Farinacci, laying open the secrets of a client’s cause to an adverse party was properly not prevarica- tion but crimen falsi (falsehood).108 Bartolus had reached the same conclusion long before. He discussed the case of a Florentine advocate who had promised to act for one party and accepted payment from him, only then, having seen all his evidence, to transfer to the other party to whom he revealed his first client’s secrets.109 He appeared openly in court for his new client but the sentence obtained was doubted, although it was unclear whether he had committed cri- men falsi or prevarication. Bartolus gave his opinion in favour of crimen falsi because prevarication required deceit, that is, that the guilty lawyer should physically act for one party while his intention was to assist the other, and that did not meet the facts of the case.110 Prevarication implied an intention to collude with the other party in a secret betrayal of the first, but in circumstances where the advocate’s relationship with both parties was patent then no such intention could exist.111 Andrea Alciatus asked whether, if there were no secrets in the cause and the question merely turned on a matter of law, the advocate could act for the party which he thought had the greater justice on his side. His reply, citing Pliny the Younger’s
107 O.F. Robinson, The Criminal Law of Ancient Rome (London: Duckworth, 1995), 37. 108 Farinacci, De Inquisitione, 1.4.14 (p. 28). 109 Bartolus, Commentaria in Secundam Digesti Novi (Lyon: Claude Servain, 1555), 162 (the text discussed is D.47.15.1); see also Alciatus, De Verborum Significatione libri quatuor (Lyon: Sébastien Gryphius, 1530), 243. The Florentine had also entered into a pactum de quota litis with the second client. 110 The falsehood consisted in revealing his client’s secrets; making a false claim he knew to be inconsistent with justice; and making a pactum de quota litis when he knew the case was not just. 111 Egidi Bossi, Tractatus Varii, qui fere omnem criminalem Materiam complectuntur (Lyon: Heirs of Jacques Junti, 1566), 404.
300854 Ethics And Etiquette 175 story of the advocate Tuscilius Nominatus, was that this could be done, pro- vided any honorarium received was returned to the first party.112 In whatever way such behaviour was characterised, it was clear that such a breach of faith should not to be punished lightly. As well as being infaming, it was an offence which led to loss of office and an extraordinary penalty accord- ing to the facts and the rank of the advocate.
Subornation of Perjury
According to the law professor John Erskine, subornation of perjury meant tampering with those who were to swear in judgment, by soliciting or directing them how to depose without regard for the truth.113 In his day, it was not pun- ished capitally but in accordance with a 1555 Act of Parliament that prescribed the same penalties as for perjury (infamy, tongue-piercing and confiscation of moveables).114 It was not a particularly unusual crime, but there are not many examples of Scots lawyers being accused of involvement in it. It was another offence which fell within the general civilian category of crimen falsi to which continental writers devoted much attention. The Edinburgh writer John Grant, in the context of his own divorce action, found himself incarcerated by the Edinburgh commissaries and charged with subornation of perjury. The six-year long action, described with hyperbole as “unparallelled in the annals of judicial procedure”, had persisted largely due to the “wonderful fabrick” that had arisen from Grant’s professional knowledge “in the labyrinths of form” which he had used to fend off a final judgment.115 One of the tricks he used was to give in a list of witnesses who were described in terms so vague it was impossible for his wife’s lawyers to investigate their backgrounds prior to their depositions. As it turned out, at least a dozen of them were prostitutes who were allegedly paid to support a claim that she had been repeatedly unfaithful to her husband, in an Edinburgh brothel, with a mysterious man in a white wig. This formed part of a defence of incrimination
112 Alciato, De Verborum Significatione, 243. For the story, see Pliny the Younger, Complete Letters trans. P.G. Walsh (Oxford: Oxford University Press 2006), v.4, 13. 113 John Erskine, An Institute of the Law of Scotland: in the order of Sir George Mackenzie’s Institutions of that Law (2 vols, Edinburgh: Printed for John Bell, 1773), iv.4. 75. 114 rps, A1555/6/23, Act anent punischement of fals witnes; Mackenzie, 27.8 gives examples of early 17th century capital sentences for subornation of perjury. He regarded death as still a competent sentence. 115 The Petition of Helen Davie, Relict of George Wilson, Mason in Edinburgh, 15 Nov. 1783, Miscellaneous collection, ser. vii, vol. 5 (1782–85), p. 3.
300854 176 chapter 5 intended to prevent the divorce.116 Despite the lengthy claims made by Grant in his defence, his wife was successful. In January 1784 he failed to defend a criminal action before the High Court for subornation of perjury and may have fled the jurisdiction.117 Another writer, Neil McVicar, was also accused of suborning a witness in a trial in which he was personally involved. McVicar was an Edinburgh writer who was also an unlicensed “practicer in managing of Causes” in the Court of Session.118 He was convicted in 1739 of forging changes to a summons and many “undue Sinistrous & Criminal practices” in order to stifle a complaint against him by James Cochrane of Hill. Not only was he declared infamous, and incapable of holding any public office, but his moveable goods were escheat to the crown and, unusually for a lawyer, he was banished for life from Scotland. The Court of Session, like other civilian courts, had jurisdiction to apply crimi- nal penalties (except sentence of death) to those who abused its procedures.119 In this case, the “unhappy wretch”, as Alexander Lockhart described him, had some interest with Lord Milton and his patron Ilay, who helped him to settle in England where his savings soon wore thin.120 In a proof or precognition held locally, witnesses were interviewed sepa- rately before a commissioner on oaths and asked questions from interrogato- ries prepared in advance. The golden rule, according to the Inveraray writer Duncan Campbell, was that once a witness was cited “his ear becomes as sacred as that of a Judge.”121 Agents could speak to witnesses prior to citation, in order to ascertain what they might have to say, but after they were cited no conversation with them could be held until they were questioned on oath. At the conclusion of the proof, the depositions were then sealed and any interfer- ence with them would lead to the testimony being cast in doubt. John Cunningham, who had been accused when drunk of having insulted the shipmaster Sebastian Swinton’s wife and daughter, alleged that the precog- nition against him had been shown to some of the witnesses who had had an
116 Bankton, Inst., i.v.128. 117 nrs, High Court books of adjournal, JC3/24, 16 Dec. 1783. 118 nrs, Books of sederunt, CS1/12, fol. 96r. Permanent exile for suborning perjury was not, per se, unusual e.g., CS1/13, fol. 31v. 119 Stair, Inst., iv.36.8; J. Erskine, An Institute of the Law of Scotland, (2 vols, Edinburgh: John Bell, 1773), i.3.21, iv.4.72; The Laws and Customs of Scotland in Matters Criminal, ed. Olivia F. Robinson (Edinburgh: Stair Society, 2012), 27.4 (199). 120 nls, Saltoun papers, ms 16582, fol. 237. He was reported to be illegally back in Edinburgh in 1762: nrs, Books of sederunt, CS1/14, fol. 163r. See also alsp, Meadowbank collection, vol. 24, no. 1, p. 2. He had a son of the same name who was also a writer. 121 nrs, Letterbooks of Duncan Campbell, GD1/205/6, ii, fol. 162 (7 Aug. 1790).
300854 Ethics And Etiquette 177 opportunity to read the testimony of others. This, he asserted, could be done “with no other Purpose, but to instruct the Witnesses in what they were to say.”122 A similar allegation was made in 1791 against the Lochmaben agent William Stewart. He committed an irregularity by bringing together all the wit- nesses called in defence of a group (which included the writer John Lindsay), examining them, and then reading over their testimony while they were all in the same room. When it became clear in the High Court that Stewart was guilty of impropriety, counsel for the defence expressed regret and put this down to “mere inattention” on Stewart’s part.123 The thirteen witnesses were ruled inad- missible and Lindsay and his colleagues found guilty of the forcible abduction of William Walls, a Dumfries councillor.124 Walls had been bundled into a chaise, and taken all the way to Surrey, simply to ensure he could not partici- pate in an election.
Protraction
Delaying an action by legitimate means was not unethical but delay for its own sake was. The technical term for this was protraction. There was a financial motivation for agents to spin a case out in order to multiply their fees. According to James Gilkie, many procurators in Edinburgh wrote unnecessarily lengthy memorials and would “for the sake of fees, and to shew their ingenuity, spin out processes with pro and con to an immoderate length.”125 The local sheriff warned against this, undertaking to read only what they wrote of the facts “pro- vided they tend to throw light on the matter in dispute” and to ignore the rest. Protraction was an easy charge to allege but a difficult one to maintain. In 1744, it was suggested in private correspondence that a representation made in court, over a debt incurred for storage, had been “a mere Bundle of fiction and nonsense intended solely to protract time.”126 The bringing of reclaiming motions was regularly criticised but might be done legitimately. The justifica- tion for them often consisted of the fact that a case, when last argued, had been decided by a majority of a single vote. There was considerable latitude in the
122 alsp, Kilkerran collection, vol. 21, no. 49, The Petition of Mr John Cunnninghame Advocate and Doctor Cunninghame his Brother-german, 5 Aug. 1754, p. 6. 123 nrs, High Court books of adjournal, JC3/45, 31 Jan. 1791. 124 Ibid., 1 Feb. 1791. 125 James Gilkie, Every man his own Procurator; or the country gentleman’s vade-mecum (Edinburgh: privately printed, 1778), 23–4. 126 nls, Delvine papers, ms 1336, fols. 2, 24.
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Court of Session to demand a reconsideration, although attempts were made during the century to narrow this quite considerably.127 John Craigie in a pleading in 1760 asked the Court of Session judges whether it was proper for any counsel, where a matter had been repeatedly before the court, and interlocutors given and reclaimed against,
to burlesque the Proceedings and Decisions of the Court, as so many Chances at Game [sic], and to represent his Reclaiming as not giving up, till the Play is fairly at an End.128
Given that attitude, he suggested, parties would be better off taking a throw of dice than submitting themselves to expensive and endless lawsuits. Despite the effects of chance, serious flaws in the court’s procedure were acknowl- edged and it was only natural for counsel to make use of them. So long as a cause depended before the court, lawyers might legitimately employ, as one correspondent complained, “every little form & shift to protract it a very great length”, even to the point of pursuing an appeal to the House of Lords.129 The procedural knowledge which gave lawyers power to protract a case could be used as a means of persecution. Lawyers were often themselves liti- gious and could be zealous in prosecuting cases, but few were extreme as the Aberdeen advocate John Gordon who had publicly vowed to harass John Lumsden “like a Fish on a Hook.”130 Lumsden was so assailed by a number of “vexatious and groundless Processes” against him in the sheriff court that he had left Aberdeenshire to reside in another jurisdiction. Practitioners in the Court of Session who “kept up processes” and failed to return them beyond 48 hours, or such other period as had been agreed, were subject to a fine by the lords of session under an Act of Sederunt of 1649.131 This did not solve the problem in Edinburgh or in the local courts. The late return of papers was a recognised tactic to disadvantage an opponent. A clever practitio- ner might keep a process “in his pocket till the days of reclaiming were just run”
127 Nicholas T. Phillipson, The Scottish Whigs and the Reform of the Court of Session, 1785–1830 (Edinburgh: Stair Society, 1990), 45–6; Finlay, “History of delay in civil procedure,” 144–7. 128 alsp, Arniston collection, vol. 50, no. 13, Answers for James Brand, Merchant in Aberdeen, 21 Feb 1760, p. 2. 129 nrs, Montrose correspondence, GD220/5/563; John Finlay, “Scots Lawyers and House of Lords Appeals in Eighteenth-Century Britain,” The Journal of Legal History 32 (2011): 249–277. 130 alsp, Arniston collection, vol. 47, no. 7, The Petition of John Gordon of Craig, 24 Jan. 1758, pp. 7, 15. 131 Acts of Sederunt 1553–1790, 59.
300854 Ethics And Etiquette 179 and lodge it with the clerk on the last possible date in order to give his opponent no chance to respond.132 Similarly, presenting an information at the end of a session, necessitating a lengthy adjournment, was a common and legitimate strategy by any defender who sought to cause delay. In the local courts, there was potential scope for procedural shortcuts but, in the Court of Session, busi- ness was naturally always slow. As the Edinburgh practitioner, John Syme, wrote to John Bushby in Dumfries in 1778, “the form of our procedures is much more regular than before your inferior courts & therefore can at no time be rapid.”133 Within the court room, incessant delay could also protract matters and mean that cases took longer than they should. In Dundee, the magistrates in the bailie court clamped down in 1766, in frustration at the lack of decorum in the con- duct of cases. Noise and needless interruption were the reasons why “Processes of late years have been kept so long in Dependence without being brought to an Issue”, leading to many complaints.134 The magistrates imposed strict rules about the return of processes, with the threat of caption, and rules that the bai- lie sitting for the month in which the process began would continue to sit with the succeeding bailie in the next month until any case originating within him was finished and he had pronounced sentence. This was also the occasion on which a rule about procurators interrupting cases that were not their own, or otherwise disturbing the court, was introduced; a disciplinary measure that was the closest thing to a law of maintenance to be found in Scotland.135
Confidentiality
The question of whether a lawyer could give evidence against his client was regu- larly raised in continental legal literature and discussed in foreign collections of reported cases. As a general rule, an advocate or procurator could not appear as a witness on behalf of his client in any action in which he had been profes- sionally engaged.136 This was because of a natural presumption that he would incline to give evidence favourable to his client. However, an adversary could
132 nrs, Maclaine of Lochbuie papers, GD174/273/3. 133 nrs, Murray of Broughton papers, GD10/1421/6, no. 319. 134 dca, Dundee Burgh and Head Court Books, vol. 39A, fol. 1. 135 Ibid., fols. 1–2. The laws of maintenance and champerty in England go back at least to the thirteenth century: see, e.g., Jonathan Rose, “The legal profession in medieval England: a history of regulation” Syracuse Law Review 48 (1998), 50–56. 136 Examples are cited by Robert Dundas in alsp, Kilkerran collection, vol. 16, no. 143, Memorial for John Baillie Pursuer against Thomas Baillie and anr, 1 Feb. 1750, p. 4.
300854 180 chapter 5 compel him to give evidence and he might do so if both parties consented.137 There were other possible exceptions to the rule.138 For example, where no other evidence on a point was possible, the lawyer for one of the parties might be permitted to give evidence. In Scotland, the leading continental texts, particularly Guiseppe Mascardi’s De Probationibus, were often cited before the Court of Session when the compe- tence of a witness was debated.139 The Privy Council, in 1608, had ruled that writ- ers and notaries as “commoun servandis” might be witnesses on behalf of their clients, despite being their “pensionars.”140 In a line of later cases in the Court of Session, the position of lawyers as witnesses was discussed with the main emphasis falling on the extent of the duty of confidentiality owed to clients.141 A distinction was drawn between information specifically imparted to a law agent in confidence and information which the agent encountered in the nor- mal course of his activities. The former was not a subject upon which a lawyer or his clerk could be judicially examined, regardless of when it had been imparted.142 Henry Home, in an argument presented on behalf of John Mackenzie ws in a case in 1744, made this point forcefully:
The Business of an Advocate or Agent for the most Part commences before the Process: Their Advice and Assistance is generally taken beforehand, and for the most Part is of as great Use in laying a Process, or preparing for a Defence, as it is after the legal Proceedings are commenced: and if there are Secrets in a Cause, they are generally imparted before-hand.143
Mackenzie had been prepared to give evidence, thinking he had nothing par- ticularly important to say, but his client had objected. The lord ordinary made an order requiring him to give evidence of all facts and circumstances pertaining to the client, prior to the complaint in question being moved in the Court of
137 Guido Pape, Decisiones, quaestio 45; Johannes a Sande, Decisiones Frisiae, 1.10.4. 138 The exceptions are usefully listed in Jodocus Stimpel, Compendium Mascardi de proba- tionibus (Cologne: Anton Hierat, 1626), 24–5. 139 E.g. Answers for Mris [sic] Sybilla Barbour, 28 Jul. 1731, Arniston vol 6, no. 33, page 3, where Mascardi is described as “an Author of great Authority” by Charles Areskine. 140 David Masson, ed. Register of the Privy Council of Scotland (1st series, Edinburgh: H.M. General Register House, 1898), xiv, 602. 141 See Finlay, “Pettyfoggers, regulation and local courts,” 56–9. On this subject, see Stair, Inst., iv.43.9; Creditors of Wamfray v Wamfray, 21 Dec. 1675, Mor. 347; Earl of Northesk v Cheyne, 15 Jul. 1680, Mor. 353; Scot v Napier, 10 Feb. 1737, Mor., 358, 142 On retaining lawyers in such circumstances, see above, page 48. 143 alsp, Falconer collection, vol. 1, no. 42.
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Session. This interlocutor was so broad that it caused Mackenzie to consult fellow practitioners. They found it unsatisfactory, fearing it would introduce a rule that might provide “a Preparative tending to break all Confidence betwixt Agents and their Clients.” In another case, it was more bluntly stated that “no man in his senses would communicate any part of his business to his agents, if the law allowed his agent to reveal them.”144 The same held true for clerks and servants of lawyers, to whom the same obligation of confidentiality extended.145 While lawyers had a moral duty to tell the truth, it was argued that this was outweighed by the consider- ation that, unless they could protect their clients’ secrets, civil society would not function and “all Trust and Confidence amongst Mankind would be broke.” In line with the common opinion of the leading continental jurists, the Scottish courts recognised no absolute rule against lawyers testifying as to mat- ters of fact relating to their clients. In 1734, accused of making a factually untrue statement in a memorial about the financial circumstances of his adversary, David Littlejohn argued that he had made a simple error, having been misled by malicious reports. To prove it, he requested that the clerk of session in charge of the process, “and the Advocate and Doers (if any have been) on both Sides…be examined before Answer, as membra curiae.”146 Objection was taken to this, but not on the ground that it was incompetent for lawyers to act as witnesses. While lawyers might testify about general matters, such as whether they had ever seen a particular charter or instrument amongst their client’s papers, there were limits to what they were prepared to divulge.147 For example, the Arbroath writer, John Colvill, testified that his client had repeatedly made gen- eral denials of the paternity of a child, but he refused to answer specific ques- tions in the sheriff court about their conversations.148
Conclusion
In terms of ethical professional practice, continental influence clearly shaped Scots law and the thinking of Scottish practitioners. Judicial concerns about
144 alsp, The Petition of Sir Alexander Grant of Dalvey, Baronet, 1767, Arniston collection, vol. 90, no. 2, Memorial for John Mackenzie Writer to the Signet, 18 Dec. 1744, p. 16. 145 Ibid., p. 20. 146 alsp, Hamilton-Gordon, 1st collection, vol. 41, no. 16, The Petition of David Littlejohn Shipmaster in Leith, 4 Feb. 1734. 147 See Finlay, “Ethics, etiquette and the early modern Scots advocate,” 171–3. 148 alsp, Miscellaneous collection, ser. iii (1774–7), no. 30, The Petition of Joseph Dalgety, watchmaker in Arbroath, 2 Aug. 1777.
300854 182 chapter 5 the potential for malpractice were expressed by sheriffs-depute who saw a need to keep practitioners under their eye and remind them of their duty. The consequence of this centralising tendency may be seen in a letter in 1788 from Duncan Campbell, commissary of Inveraray, to his friend Lachlan Maclean of Torloisk on the Isle of Mull. This carried the news that Maclean might soon have a local sheriff substitute who “will bring the law to your Elbow.”149 If nec- essary, agents would then come from Inveraray, according to Campbell, “to dif- fuse peace & Harmony in the Legal Stile.” Presumably these would be men approved of by the sheriff as reputable practitioners. Allegations of wrongdoing persistently emerged in the inferior courts and also in Court of Session papers when cases were moved there. These include examples of all the main sins that professional lawyers could conceivably com- mit, from fraud to perjury, although the incidence of such cases is not high relative to the size of the profession. Yet there were at least as many positive references to good practice from satisfied clients as there were complaints, and it is fair to assume that the bad examples attracted attention in a way in which routine, competent, and honest legal practice did not. Litigants often had a high opinion of their own lawyers and of others with whom they had dealings. Arbitration was commonly used as an alternative to lengthy litigation and examples abound of litigants willing to refer their case to the procurator or advocate acting for the adverse party, expressing their confi- dence that a fair result would be obtained.150 People were willing to trust to the honour and sense of fairness of lawyers as gentlemen of standing within their community and to the moral training which that status pre-supposed.151 Once a public accusation of wrongdoing was made against a lawyer, particu- larly one involving dishonesty, then it might lead, like the breaching of a dam, to other complaints against him.152 Reputation underpinned public confi- dence. Once it was damaged, clients were not inclined to forbear perceived indiscretions and might even take advantage of their lawyer’s troubles as a
149 nrs, Letterbooks of Duncan Campbell, GD1/205/6, ii, fol. 36 (5 Mar. 1790). James Maxwell, chamberlain of Mull, was thought to be the likely appointee. 150 On arbitration, see Finlay, “Arbitration in eighteenth century Scotland,” Juridical Review (2011): esp. 279–80. An example is an offer by Robert Reid ws, as a litigant, to submit a property dispute to Sir David Dalrymple who acted for his opponents: alsp, Arniston collection, vol. 60, no. 17. Sometimes such a reference was, of course, merely a desperate tactic by a party who faced inevitable defeat in litigation. 151 See the interesting discussion of the Christian gentleman’s moral character in a Victorian text that was recommended to Scottish apprentices: Edward W. Cox, The Advocate: His Training, Practice, Rights, and Duties (London: John Crockford, 1852), Chapters 9 and 10. 152 See Finlay, “Corruption, regionalism and legal practice,” 156.
300854 Ethics And Etiquette 183 pretext to avoid paying for past services. It was Neil McVicar’s committal to custody in the Tolbooth that prompted his client, David Sutherland of Cambussavie, to come to Edinburgh having been “alarm’d of what I hear’d passing” with regard to the man who had been managing his affairs for over a decade.153 He alleged that McVicar, for personal gain, had given him “perni- cious Advice” and “over-persuaded” him into conduct which harmed his inter- ests. McVicar denied the charge and complained about the malicious terms used to describe him, asserting balefully that “it is the Province of Malice to exert itself to insult the Distressed, and improve the Season of his Adversity.”154 He particularly objected that copies of Sutherland’s petition (drawn by Henry Home) had been intentionally circulated publicly in order to blacken his name. In a detailed rebuttal, he sought to justify disputed items of account from liti- gation involving Sutherland, which had been pursued between 1728 and 1735 in a matter that, four years later, remained unresolved.155 Run-of-the-mill complaints should not be taken too seriously. Allegations of extravagance and over-charging for services were normal. Robust language was not unusual and some lawyers had a taste for it, although most had the depth of vocabulary to suggest damning conclusions with more subtlety. Pleadings concerning lawyers cast them in various guises: the innocent dupe, the self-seeking cheat or, more positively, as the defender and liberator of the weak. Sometimes country procurators were accused of colluding with an Edinburgh agent, either to promote undue delay or some other procedural tactic whereby a client might illegitimately pressure his adversary.156 No mat- ter how inventive they were, or how closely they sailed to the wind, lawyers were aware that their conduct had an ethical dimension and that they might have to account for it before their fellow practitioners, the local judge, or the lords of session. Country lawyers had standing in their communities which might make cli- ents and others hesitate to accuse them. Once accused, however, their very status was seen as an aggravation of any wrongdoing. The case of Alexander Veatch, a writer and former bailie of Dunfermline, provides a good example. Veatch was prosecuted in 1756 for theft and usury by the fiscal of his local
153 alsp, Miscellaneous collection, vol. 17, no. 94, The Petition and Complaint of David Sutherland of Cambussavie, 14 Feb. 1739, p. 1. 154 Ibid., The Petition and Complaint of Neil M’Vicar Writer in Edinburgh, 16 Feb, 1739, p. 2. 155 Ibid., p. 14. McVicar had “form” for over-charging: gca, Records of the Maxwells of Pollok, T-PM 115/93. 156 E.g. alsp, Kilkerran collection, vol. 21, no. 102, The Petition and Complaint of George Gordon of Gordonbank, 1 March 1754.
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justice of the peace court.157 It was alleged that, of over thirty years, he had been taking turnips, onions and other produce from the gardens of his neigh- bours as well as stealing poultry. His reputation for such foibles was apparently widespread. An agent in the burgh court, and also a publican and landowner, Veatch had become a figure of some local importance. As such, he tried to buy his way out of trouble through out-of-court settlements, never failing to men- tion when threatened with litigation that he had friends in Edinburgh should matters ever reach the courts there.158 When Veatch was eventually prosecuted, he took the unusual step of retain- ing Edinburgh counsel, William Johnstone, to act for him in the jp court. In response, the fiscal employed the advocate, David Rae, to argue the prosecution case. For good measure, the provost of Dunfermline, presiding with his fellow jps, was also an advocate, Alexander Wedderburn, future lord chancellor of England, who, “as a very learned Lawyer and Professor”, advised the lay justices on procedure.159 There was no shortage of testimony against Veatch (the trial lasted fifteen hours, from 4 pm to 7 am) but, before a verdict could be reached, he sisted proceedings by bringing a bill of advocation to have the matter taken to Edinburgh. The case illustrates how easy it was for a man to avoid prosecu- tion for years, due to his ability to overawe his neighbours, despite being well- known as an “Onion and Hen Stealer” throughout his local community.160 It was only the determination of a local gardener, William Thomson, whose livelihood was at stake from Veatch’s thefts, which ultimately saw him accused. In modern law, the potential conflict between the lawyer’s fiduciary duty to his or her client and wider obligations that “transcend the lawyer-client relation- ship” is recognised and understood.161 So it was in eighteenth-century Scotland. Lawyers had a set of obligations to society that did not always sit well with any notion of absolute loyalty towards their client. When a boundary was crossed, the lawyer would generally be held accountable. David Armstrong, an advocate who assisted a client to defraud his creditors, is one example but the temptation to engage in forgery or fraud existed at all levels of the profession.162 Although Armstrong’s career was ruined, the extent of any reputational damage depended on the circumstances. The Glasgow writer James Wilson,
157 alsp, Craigie collection, vol. 48, no. 39, Copy of the Process at the Instance of William Black, junior, Writer in Dunfermline, etc., n.d. 158 Ibid., p. 6. 159 Ibid., The Petition of Alexander Veatch of Easter Craig Douckie, 16 Nov. 1756, p. 7. 160 Ibid., Memorial and Answers for William Black, 5 Jan. 1757, p. 20. 161 Rueschemeyer, Lawyers and their Society, 20. 162 Finlay, “Corruption, regionalism and legal practice.”
300854 Ethics And Etiquette 185 fined in 1740 by the lords for completing a blank execution that had been fraud- ulently signed in advance by a messenger, managed to save his career.163 However, his reputation was certainly damaged and he was forever vulnerable to claims against him, such as one brought by the illiterate Paisley weaver, Allan Hodgeart, in 1762. Hodgeart, claiming that Wilson had taken advantage of him with regard to expenses, cited his 1740 transgression, using it to brand him as “a man of a very suspicious character.” Malpractice aside, clients were sometimes dissatisfied with the level of loy- alty shown to them by their lawyers (Lord Lovat’s correspondence contains some rich invective on the theme). Yet lawyers could face genuine ethical dilemmas which sometimes could only be resolved at personal cost. The niece of the Edinburgh writer Alexander Shaw, regretting that her uncle had been allowed to die without having his accounts settled by Sir William Gordon of Invergordon, noted how Alexander had gone to “great lengths in serving Sir William, in so much that he was once actually thrown in jail on his account.”164 Such loyalty mattered. The heritage of Scots law meant that ideas about fidel- ity, virtue, and honesty were always at the forefront of practitioners’ minds and they traded on them to keep and attract clients. The Latin forms of these words feature regularly in the personal mottoes of notaries and in the mottoes of those advocates who chose to matriculate arms.165 Ultimately, it is impossible to know the extent to which lawyers lived up to the ideals they professed. Many seem to have done so. Malpractice, though regularly enough detected, was publicly punished, sometimes very strongly, and references to it are greatly outweighed by signs that lawyers were consci- entious and honest in the advancement of their clients’ interests. Lawyers cared not only about their own reputation for probity, but also about that of the profession as a whole. If lawyers individually were often praised, while col- lectively they were condemned, there was nothing particularly unusual in that. To redress the balance, they sought, collectively, to be praised for their altruism and this is nowhere more clearly seen than in their concern for the poor which forms the subject of the next chapter.
163 alsp, Arniston collection, vol. 6, no. 10, The Petition of Allan Hodgeart, Weaver in Paisley, 5 Feb. 1762. 164 alsp, Arniston collection, vol. 109, no. 28, The Petition of Mrss [sic] Magdalen Graham, Niece and Executrix of the deceased Mr Alexander Shaw Writer in Edinburgh, 28 Jul. 1772. 165 On mottoes, see Finlay, ed. arnp, i, pp. 16–19; 1926 Scots Law Times, 54–6.
300854 chapter 6 Pro Bono
Advocates should not receive payment from the poor. Giasone del Maino (1435–1519)1
An important focus in legal practice was free representation for poor litigants. By the eighteenth century, Scotland had long enjoyed an organised system of legal representation for those unable to pay for it. This was managed within the profession itself in a way which recognised that lawyers had a social obligation to the rest of society. This was one of the obligations affecting Scots lawyers, deriving from medieval Christian teaching, which fell firmly within a pan- European tradition. Poor litigants have left their imprint on court and other records. In particu- lar, the impossible situation of those imprisoned for civil debt can do nothing but elicit sympathy. Detached from any means of earning income, they risked starvation whilst their families sought charity from the parish. Some relief was afforded by the Act anent the Aliment of poor Prisoners, passed in 1696, which required creditors to provide security for an aliment of three shillings per day or else to consent to liberation.2 The Act was not always effective and letters from those left to languish in burgh prisons can make sorry reading. According to his complaint to the Court of Session in 1734, Charles Hay had been imprisoned in the Tolbooth of Edinburgh for almost three years by a creditor who refused to aliment him. On the point of being released, his lib- eration had then been stopped when the keeper of the prison demanded pay- ment of his fees.3 In this case the magistrates had acted contrary to the advice of their assessors and that is significant because it was in burgh tolbooths that civil debtors were generally imprisoned and magistrates who were supposed to defend their rights.4 While it is unsurprising that so many retired to the relative safety the debt- ors’ sanctuary at Holyrood, poor litigants belonged to a category much wider
1 Giasone del Maino, De Actionibus (Lyon: printer unknown, 1565), 103, n. 50, “aduocati non debent accipere salarium a pauperibus.” 2 rps, 1696/9/151, Act anent the Aliment of poor Prisoners. 3 alsp, Miscellaneous collection, ser. 16, box 1, The Petition of Poor Charles Hay, present prisoner in the Tolbooth of Edinburgh, 11 Jul. 1734. 4 Cf. nrs, Fraser-Mackintosh collection, GD128/41/5.
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European Background
The intellectual debt of Scots lawyers to the continent can be demonstrated in many ways and legal representation for the poor is prominent amongst them. To medieval thinkers, knowledge was regarded as a gift from God and as some- thing which ought to be transmitted free of charge. Teachers of law, according to the Roman jurist Ulpian, should not demand payment from their students.6 Nor should they seek gifts, although it was honourable to accept them. The Christian tradition, from at least the Council of Chalcedon in 451, reinforced this idea by imposing a duty on clerics to give legal counsel to widows, orphans and the poor.7 Those ‘miserabilae personae’ too poor or unfortunate to pay for legal advice came under the protection of their local bishop. This category of individual, according to the influential fourteenth-century canonist Guillaume Durand, included the indigent person who was in need of the help and caring protection of the church, and also pupils, widows, orphans, foreigners and the unjustly oppressed.8 A decretal of Honourius iii gave specific content to this obligation in the context of medieval courts of law by authorizing ecclesiastical judges to appoint an advocate for such persons.9 This mirrored Roman practice where, according to a Digest text, the praetor undertook in his Edict to provide an
5 On the survival of Holyrood as a sanctuary, see H.L. MacQueen, “Girth: Society and the law of sanctuary in Scotland,” in John W. Cairns and Olivia F. Robinson, ed. Critical Studies in Ancient Law, Comparative Law and Ancient History (Oxford: Hart Publishing, 2001), 349–52. 6 Gaines Post et al., “The Medieval Heritage of a Humanistic Ideal: ‘Scientia Donum Dei Est, Unde Vendi Non Potest’,” Traditio 11 (1955), 197; D.50.13.1.4–5. 7 J.A. Brundage, “Legal Aid for the Poor and the Professionalization of Law in the Middle Ages,” Journal of Legal History 9 (1988), 170. 8 Speculum Judiciale, 1.1.3.4; see also Pierre Rebuffi, Petri Rebuffi Monpessvlani, iurisconsulti cele- berrimi, in privilegia & immunitates uniersitatum, Doctorum, Magistrorum ac Studiosorum, commentationes enucleatissimae (Antwerp: Arnout Coninx, 1583), 10–11. 9 Brundage, “Legal aid for the poor,” 172.
The Theological Basis of Advocacy for the Poor
The duty to aid the poor was based directly on biblical authority. One of the key texts was the parable of the talents which had been interpreted influen- tially by Pope Gregory the Great.15 One of the lessons drawn from it, by Gregory and subsequent interpreters, was that each person had a duty to account for his gifts; those with great talents must not hide them away but must exert themselves to perform good deeds. Those who did so would have a store of spiritual profit which, on the Day of Judgment, would weigh in the balance against their sins. Domingo de Soto applied this directly to lawyers. For him, the advocate who was skilled in oratory had a duty to intercede amongst the rich in the interests of the poor (apud divitem pro pauperibus intercedat).16 This idea was well understood in Scotland. Even if De Soto himself was not much
10 D.3.1.1.4; see also C.2.6.7.1. 11 Brundage, “Legal aid for the poor,” 174. 12 Huber, Praelectionis, 3.1.16n. 13 Andreas Gail, Observationum Practicarum Imperialis Camerae, et singularium casuum in Caesereo Auditorio [Venice: Petrus de Farris, 1613], Obs. 43.10, “[e]t removeri ab officio, non est levis poena.” 14 Domingo de Soto (1494–1560); Deigo de Covarrubias y Leyva (1512–77). 15 Matt: 25:14–30; Luke 19: 12–28; Gregory the Great, Forty Gospel Homilies, trans. D. Hurst (Cistercian Publications: Kalamazoo, 1990), 132. 16 D. de Soto, De iustitia et iure libri decem reverendi P.F. Dominici Soto, segobiensis (Venice: Pietro Maria Bertano, 1608), 5.81.
17 Gail, Observationum Practicarum Imperialis Camera, Obs. 43.10, “Advocatum patrocinium suum pauperi detrectantem mortaliter peccare.” 18 Thomas Aquinas, Summa Theologiae, vol. xxxiv trans. R.J. Batten O.P. (Blackfriars: Eyre and Spottiswoode, 1975), 2a.2ae.32.5 (pp. 252–253). 19 Thomas Aquinas, Summa Theologiae, vol. xxxviii trans. Marcus Lefébure O.P. (Blackfriars, Eyre and Spottiswoode, 1975), 2a.2e.71.1 (pp. 142–3). 20 St Augustine, On Christian Doctrine trans. Durant W. Robertson (Indiania: Bobbs-Merrill Educational), 1.28. 21 1 Tim. 5:8.
As highly practical men, lawyers felt no embarrassment about preferring wealthy clients to poor ones. Very few shared the priorities of St Yves, the patron saint of lawyers, who gained much of his reputation for concern for the poor from his work as a judge and advocate in the church courts. The practical limits, which necessarily had to be imposed on the duty to act for the poor, therefore happily coincided with the natural inclination of lawyers, particularly in the secular courts. As the jurist Vincenzo Carocci (fl.1580) pointed out, it was not by accident that advocates, procurators and notaries in Rome were described as the dogs of the papal Curia and regarded as devourers of the poor.22
Defining the Poor
The recognition that the obligation to assist the poor was finite meant that it was essential to establish some boundary line between those to be helped and those deemed able to help themselves. The imperial jurist, Matthias Berlich (1586–1638), discussed this question at some length. He pointed out that while the general obligation to provide assistance was clear, interpreters of the law had found it less easy to determine who should be called a pauper and admit- ted to swear the oath of poverty.23 In some places, the threshold was the own- ership of goods to the value of fifty florins.24 In the Reichskammergericht and at the Supreme Court in Dresden, paupers simply had to swear that they did not have sufficient moveable or immovable property to meet the cost of an advo- cate’s fees and the expenses of litigation.25 As was pointed out by the sixteenth- century Italian jurist, Francesco Beccio (1519–bef.1610), the onus was always clearly on the pauper to prove his poverty.26 Once this had been achieved, the moral obligation crystallised and an advocate might then be compelled to act, even against his will and under the threat of being deprived of office. In the view of Covarrubias, one of the few Spanish writers to be cited with any regularity in eighteenth-century Scotland, once a litigant had demonstrated
22 V. Carocio, Tractatus Locati et Conducti (Venice: Joannes Baptiste et Joan Bernard Sessam, 1597), 23 (“appellantur canes curiarum, & devoratores pauperum”). 23 Matthias Berlich, Pars prima conclusionum practicabilium (Leipzig: Georg Sengenwald, 1651), 7.89. 24 Ibid., 7.91. 25 Ibid., 7.93. 26 Franciscus Beccio (Becius), Consiliorum sive Responsorum, liber primus (Venice: Francesco Ziletti and Francesco Portonari, 1575), cons. cv, n. 28 (p. 202). On Beccio, see the entry by F.T. Ginolino in A.L. Ghisalberti et al., ed. Dizionario Biografico degli Italiani (Rome: Istituto della Enciclopedia italiana, 1970), vii, 497–8.
The Early History of Provision in Scotland
Scotland is an interesting case study in the evolution of legal representation for the poor. Continuity of provision can be traced back to soon after the establish- ment of the College of Justice in 1532, when the court appointed an advocate for the poor and, in later practice, this came to be recognised as a professional duty by legal societies within, and later also outside, the College. The earliest reference to something resembling an advocate to the poor is found in legislation from 1425 during the reign of King James i. This explicitly stated that the king should order judges to provide a wise man to be advocate when “ony pur creatour for defaut of kunnyng or dyspensis is nocht of powar or can nocht follow his cause.”31 This was motivated by ecclesiastical practice
27 Diego de Covarrubias and Pieter Cornelis Van Brederode, Didaci Covarruvias a Leyva… opera Omnia (Frankfurt am Main: Feyerabend, 1592), 396 (Practicarum Quaest, 2.6.4). 28 Pietro Pacioni, De Locatione et Conductione tractatus, etc (Rome: Nicolo Angelo Tinassi, 1677), 196. 29 Rebuffi, Commentationes enucleatissimae, 144: “Praeterea iudex debet esse protector pau- perum.” In the edition of this text I have used, gul Spec. Coll. Bm4-h.18, the page number is misprinted as 441. 30 Ibid., 144–5. 31 rps, 1425/3/25, “Poor’s Counsel Act.” This text, which is now to be preferred, differs some- what from that given in the nineteenth-century printed version, Thomas Thomson, ed.
The Acts of the Parliaments of Scotland (Edinburgh: Printed by Command of His Majesty King George the Third …, 1814), ii, 8. 32 See Charles N. Stoddart, “A short history of legal aid in Scotland,” Juridical Review (1979): 170. The 1430 Act relating to the oath de calumnia explicitly refers to “advocatis & forespe- karis in temporalle courts”, but the word ‘advocate’ is rarely used outside statute except in relation to the later office of king’s advocate: rps, 1430/20, “Oath of Calumny Act.” See also Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh: Edinburgh University Press, 1993), 81 and the sources he cites at 100, n. 54. 33 John Finlay, “Henryson, James, of Fordell (d. 1513),” Oxford Dictionary of National Biography, (Oxford: Oxford University Press, 2004). 34 Ibid., “James Henryson and the origins of the office of king’s advocate,” Scottish Historical Review 79 (2000), 17–38. 35 It is worth noting the proximity in date to English legislation in 1495 concerning the poor in the common law courts, 11 Hen. viii, c.12: John M. Maguire, “Poverty and civil litiga- tion,” Harvard Law Review 36 (1923), 363–4, 373. The phrase “in forma pauperis”, used in that legislation, is not one I have seen in the Scottish sources prior to the 19th century.
36 Robert K. Hannay, ed, Acts of the Lords of Council in Public Affairs, 1501–1554 (Edinburgh: H.M. General Register House, 1932), 434–5. See also Finlay, Men of Law, 84–86. 37 Payments to advocates for the poor did not continue into the seventeenth century. It is unclear when they stopped. 38 Finlay, Men of Law, 85. For Sinclair’s Practicks, see especially no. 249 and a case involving Andrew Blackstock, then advocate for the poor, (no. 335), who had received funds for a poor client which he was ordered to deliver. A preliminary text is published at: http:// www.uni-leipzig.de/~jurarom/scotland/dat/sinclair.htm. 39 E.g. Paulus Busius, Commentarius Pauli Busii IC. Zuollani in Universas Pandectas Domini Justiniani (Deventer: Jan Colomp, 1656), 3.1. 40 See above, page 104.
By having a roll set aside for poor causes, so that they might be heard summar- ily, the lords of session were fulfilling the traditional duty of judges to hear the causes of the poor more quickly than those of the rich.41 Qualification for this roll depended on proof that income fell below a prescribed amount. In 1542 William Mowbray was disqualified from the benefit of the poor’s table because he had sufficient land held in liferent to afford him the sum of seven shillings worth of food annually.42 On the other hand, Janet Newton did benefit despite the fact that her opponent alleged she was to receive £500 from him.43 According to canon law, poverty was to be defined according to current means, not future expectations, and this appears to be an example of that principle being applied in the College of Justice.44 Scotland during the sixteenth century offers parallels with elsewhere in Europe in terms of political and social attitudes towards the poor. Contemporary statutes demonstrate both the perceived threat posed by vagrancy and the need to ensure proper relief at the parish level for those in need.45 The law placed restrictions upon beggars and vagrants and regulated the circumstances under which the “impotent” poor, that is those unfit to work, were permitted to beg. Those who fell into the category of “deserving” poor had to wear a badge to sig- nify their entitlement to beg, a practice which had earlier prevailed in France and within the Holy Roman Empire.46 Reliance on the interpretation of canon- ist texts by jurists, such as Azo (d. c. 1250), Alberico de Rosate (d. c. 1354) and Matthaeus de Afflictis (1448–1528), persuaded the sixteenth-century Frisian lawyer Jacques van Bourits that the poor should not include those reduced to poverty by their own fault or prodigality, rather than by misfortune.47 Widows and others who led a dishonest life were simply not worthy of the privilege of
41 Rebuffi, Commentationes enucleatissimae, 146: “Item causam pauperis iudex citius debet expedire, quam diuitis.” 42 nrs, Acts of the lords of council and session, CS6/19 fol. 38r: 8 May 1542; Finlay, Men of Law, 83–4. 43 nrs, Acts of the lords of council and session, CS6/7 fol. 164r: 23 Mar. 1536. 44 Helmholz, Classical Canon Law, 131. 45 Julian Goodare, The Government of Scotland 1560–1625 (Oxford: Oxford University Press, 1999), 120–1. 46 Robert Jütte, Poverty and Deviance in Early Modern Europe (Cambridge: Cambridge University Press, 1994), 160. There is discussion of the poor from the parliamentary per- spective in Julian Goodare, “Parliament and Society in Scotland” (PhD diss., University of Edinburgh, 1989), Chapter 8. 47 Jacobus Bouricius (Jacques van Bourits), De Officio Advocati (Leeuwarden, 1604), c. xiv; on van Bourits, see the introduction to the French translation by J. Nauwelaers, Advocatus (Brussels, 1942).
Systematisation
The sederunt books of the Court of Session record the names of advocates and writers for the poor, although they do not provide a complete list. It is obvious, at least in later volumes, that the clerks are simply recording lists handed to them by the clerks to the legal societies within the College, that is the Faculty of Advocates, ws Society and, latterly, the Society of Agents (the s.s.c. Society). The earliest recorded list dates from 1576 and consists of four advocates and four clerks (or writers) to the signet acting in pairs. The poor litigants from each of four groups of sheriffdoms were assigned to each pair.49 Thus the advo- cate David Macgill and James Harlaw ws were assigned the poor from the northern sheriffdoms: Orkney, Inverness, Cromarty, Nairn, Elgin, Forres, Banff and Aberdeen. Thomas Gilbert and Peter Hewat ws had Edinburgh and the south, while John Russell and Henry Wardlaw ws had the west and Thomas Gray and John Kene ws were given causes emerging from Stirlingshire, Kincardine, Forfar, Perth, Fife, Kinross and Clackmannan. This geographical division, by 1580, had been replaced by a chronological division, with the court’s calendar divided into periods, running from the opening of the session in November to Candlemas (2 February); from then until Beltane (1 May) and from then until the long harvest vacation began at Lammas (1 August).50 In each period, three advocates and one writer were appointed to deal with all actions concerning the poor whatever their source. By the late 1580s, four advocates and four writers for the poor were holding office half-yearly to coincide with each session of the court, that is, from 1 November to 15 March or from 15 May until 15 August. Experienced leaders of the bar, such as John Shairp of Houston (in 1589) and Thomas Craig of Riccarton (in 1592) were included in their ranks.51 Some, such as John Logie and Alexander
48 E.g. Joannes Andreas van der Muelen (1655–1702), Statuta et Consuetudines Diocesos Vianensis et Ameydensis tam in civilibus quam criminalibus causis (Utrecht: Johannes Ribbius, 1684), 11.5, n.1. 49 nrs, Court of Session, books of sederunt, CS1/3/2, fol. 370v. Compare the “quartering” later suggested in 1587 for appointing justice deputes: rps, 1587/7/67, Act for the further- ance and furthsetting of the criminall justice ower all the realme. 50 Ibid., CS1/3/2, fol. 369v. 51 On Shairp, see Margaret H.B. Sanderson, Mary Stewart’s People (Edinburgh: J. Thin, 1987), 22–33.
King, were appointed on multiple occasions. This continuity was clearly by design because as the bar expanded at the end of the sixteenth century there was an ever-growing pool of talent from which to draw. A similar element of continuity can be found amongst the nominated “writtars for the pure [i.e. poor]”, all of them writers to the signet. Adam Schoir, for example, was appointed continuously between 1588 and 1600. While appointments had been left to the discretion of the lords of session in 1535, it is likely that in later prac- tice the lawyers determined them amongst themselves. What emerged from the sixteenth century, after a period of experiment, was an annual pattern of appointment of four advocates and four writers to the signet. The same names often re-appear. For instance, Richard Spens was appointed one of the advocates for the poor in 1591, 1594 and 1599 and James Stirling in 1589, 1592 and 1596. Such repetition remained a feature during the seventeenth century, a later example being John Gilmour who served in 1629, 1635 and 1642. By then, however, a high proportion of those who served did so for only a single year. While many were younger men, this was by no means true in all cases. John Logie and Thomas Craig were acting for the poor twenty or more years after their own admission to the bar. A few generations later, Walter Pringle, admitted in 1664, waited sixteen years until serving his turn as advocate for the poor in 1680.52 By then the pattern of appointment had changed once again. Rather than serving a year, advocates were appointed in pairs for two months each, with an experienced man partnering a relative novice, possibly as his assistant. In June 1675, for example, the veterans William Beaton (appointed for the period June– July), John Stewart senior (November-December) and James Brown (January– February 1676) were appointed alongside the recently admitted James Brisbane, James Borthwick and Robert Winrahame (Winram) respectively, for the same periods of office. A similar pattern is repeated, for instance, in 1717, with three veterans alongside three novices, including John Edgar who was appointed barely a month after his admission.53 The books of sederunt are incomplete, therefore a full record of appoint- ments does not exist. Later gaps can be supplemented from evidence in the minute books of the Faculty of Advocates and the ws Society, which make it clear that the system of annual appointment continued to be maintained up to the 1940s. From 1717 the Faculty’s minute books record nominations on or close
52 This may have been a form of penance. Pringle had been deprived of office by the lords in 16777 and re-admitted in June 1679: nrs, Court of Session, books of sederunt, CS1/7, fols. 53r-v, 131r-v. 53 Pinkerton, ed. Faculty Minute Book, 1713–1750, 13.
Selection
In the eighteenth century, the dean of Faculty began personally to nominate the counsel for the poor. Copies of lists presented to the lords by the deans of Faculty, Robert Bennet and Andrew Home, in 1711 and 1714 respectively, are preserved in the court’s sederunt book.54 This was still in the format of having a pair of advocates, the usual mix of youth and experience, each active for two months while the court was sitting (November and December, January and February, and June and July). Alongside them were six writers, each active for two months throughout the entire year.55 In 1708 the lords had instructed lists to be submitted to them one month before 1 January each year.56 This system apparently fell into disuse because in 1742 the lords noted the
former custom of the dean of faculty & keeper of the signet annually giv- ing in to the clerk keeper of the Sederunt book a list of such Advocatts and writters for the poor as have been appointed that year & which lists by former practice were marked by the clerk on a leaf at the end of the sederunt book.57
They recommended that such lists once again be submitted and marked in the sederunt book. This does not mean that lawyers and writers for the poor had ceased to be nominated, merely that for a period the names had not been recorded in the court’s own record. As noted earlier, those appointed represented the pairing of senior and junior members of the bar and the difference in their relative experience could be considerable. One of the appointees in 1711, Michael Lumsden, had entered the bar in 1677 and first acted for the poor in 1686. He had over thirty years
54 nrs, Books of sederunt, CS1/10, fols. 117r, 161v-162r. 55 These were not always consecutive months. In 1711, the rota of writers to the poor was as follows: Alexander Farquharson (June and August); Robert Dalrymple (July and September); Robert Alexander (December and March); Charles Hope (January and April); Ludovick Brody (February and May): nrs, CS1/10, fol. 223r. By contrast, in 1710 the six writers had each acted for two consecutive months. 56 nrs, Books of sederunt, CS1/10, fol. 223r. 57 Ibid., CS1/12, fol. 166v; Acts of Sederunt 1553–1790, 375 (16 June 1742).
58 Ibid., CS1/10, fol. 223r. 59 Pinkerton, ed. Faculty Minute Book 1713–1750, 12–13. 60 Ibid., 34. 61 In fact, only four were appointed in December 1784, but six were appointed in December 1785 and subsequently: nrs, Books of sederunt, CS1/17, fols. 4v, 25r; Stewart and Parratt ed. Minute Book of the Faculty of Advocates, 1783–1798, 36. 62 Ibid, 288, 299, 309, 318, 328. 63 al, Faculty records, FR339r/9, “Report of the Committee appointed by the Faculty of Advocates to consider of new Regulations for the Poors Roll, 26 June 1778.” 64 This rule was explicitly introduced by the lords in June 1710: nrs, Books of sederunt, CS1/10, fol. 106r.
65 Ibid., CS1/17, fol. 41v. 66 Pinkerton, ed. Faculty Minute Book, 1713–1750, 195, 201, 203, 209. 67 The Acts of Sederunt of the Lords of Council and Session from 11th July 1800 to 7th March 1810 (Edinburgh: Printed for Manners and Miller by G. Ramsay, 1815), 1–2; nrs, Court of Session, Books of sederunt, CS1/19, 11 Jul. 1800. See Stoddart, “A short history of legal aid,” 177. 68 E.g. of the six counsel appointed in 1823, the earliest intrant was Robert McLachlan (adm. 1816) and the latest was John Hyndman (adm. 1819). For the 1819 Act, see below, note 74. 69 nrs, Books of sederunt, CS1/21, fols. 139, 199. Thus, during the five-year period from 1815 to 1819 inclusive, a total of fourteen counsel were appointed for the poor. 70 al, Faculty records, fr 9, fols. 235, 237–8. 71 Messrs A.E. Henderson, G.S. Dundas, J. Kirkpatrick. A.R. Duncan, H. Johnstone and W.G. Scott Moncreiff.
72 Legal Aid and Solicitors (Scotland) Act 1949. Reporters on probabilis causa were drawn from those who had previously served as advocates for the poor. In practice, probabilis causa was, at least by the end of the century, a stiff test: Anon., “Legal aid for the poor,” Juridical Review 14 (1902): 304–6. 73 al, Faculty records, FR10, fols. 68, 613. Gloag was one of the reporters on probabilis causa in 1902: ibid., fol. 114. 74 al, Faculty records, FR10, fols. 613, 632, 645, 687. This refers to the Act of Sederunt of 16 June 1819, which repeated the requirement for six advocates to be nominated and which was still the governing secondary legislation: e.g. ibid., fol. 180. 75 Report and Special Report from the Select Committee on Poor Prisoners’ Defence Bill; with the Proceedings of the committee, 13 Jul. 1903, H.M.S.O., House of Commons, Appendix, No. 1, 59. See also, Brian Abel-Smith and Robert B. Stevens, Lawyers and the Courts (London: Heinemann, 1967), 135–6.
76 sl, ws Society Sederunt book 1819–1829, fol. 406. 77 sl, Untitled volume of regulations, 19 Mar. 1694; sl, ws Society Sederunt book 1750–84, fol. 114. 78 Cf Sheriff Courts (Scotland) Act 1907, rule 168, which relieved a poor litigant and his agent of liability for dues or court of officers’ fees in the sheriff court unless they recovered these expenses from the opposite party by order of the court. On expenses, see infra. 79 Calder v Parker (1841) 3 D. 476; Acts of Sederunt 1821–1831, 6 (19 June 1821).
Procedure in Poor’s Causes
The mechanics of representation for the poor, aside from the 1425 statute, had largely been left to the judges and lawyers to develop. Eventually the procedure governing representation for the poor was set out in an Act of Sederunt in 1784. Prior to that, although Acts were produced in 1686, 1710 and 1742, these were short and “inadequate for the good purposes thereby intended.”81 In fact, the first three Acts amounted to very little. The 1742 Act was merely a recommen- dation in regard to the existing custom of the Faculty and ws Society of annu- ally nominating some of their members to act for the poor. The 1784 Act, on the other hand, was the product of Faculty committee reports and considerable judicial discussion. Indeed, the Faculty’s interest in the procedure long contin- ued and the advocates provided considerable help to the judges in framing further Acts of Sederunt in 1819 and 1842, both of which improved on the sys- tem outlined in 1784. The extent to which the core procedure had emerged through custom can be seen in Andrew Crosbie’s description, in a case in 1760, of how a poor liti- gant’s prospective action was considered:
No body can be admitted to the Benefit of the Poor’s Roll, but such as bring along with them a Certificate of their extreme Poverty, and of their good Behaviour; and at the same time they must lay their Grounds of Plea before the Court. These are remitted to be considered by Lawyers, whose Duty it is to inquire into them, and fairly to report to the Court their Opinion, whether they afford a Probability of Success or otherwise; and according to this Report, the Person applying is either refused or admit- ted to the Benefit of the Poor’s Roll. Such a Pursuer comes into Court in a very favourable Situation. He brings with him a Certificate of his Behaviour, the Verdict of a Kirk-session, the Censors of their Parish. He brings with him the Report upon his Remit, a Verdict of Lawyers upon the Merits of his Cause, unbiassed by Acquaintance or Connections.82
80 sba, Jedburgh tcm 1767–1786, 19 Aug. 1776. 81 Acts of Sederunt 1553–1790, 610 (10 Aug. 1784). 82 alsp, Arniston collection, vol. 46, Petition of Poor George Johnston, landlabourer in Langholm, 28 Jul. 1760, p. 6.
The emphasis, on “extreme” poverty and good behaviour, is highly conven- tional. Free representation was reserved to the deserving poor; generally peo- ple who were settled in one parish, or at least had settled there long enough to establish a reputation. As Crosbie went on to state, of all litigants the poor were least likely to be in a position to relieve a cautioner. No-one would choose to stand surety for a poor litigant; there was nothing to gain and always a risk that the case might be lost. Crosbie was arguing against a ruling of Lord Kames, who had held that his client, George Johnston, a poor land-labourer from Langholm, must provide a cautioner (guarantor) before he would be permitted to present his proof. To their credit, the judges in the Inner House overruled Kames and dispensed with the need for caution. Elements of procedure had a basis in rules of court. In 1686, the lords had enacted that any person seeking the benefit of the poor’s roll would in future have to specify the processes in which they were pursuer or defender and would not enjoy the benefit of the roll in all actions which they might poten- tially bring.83 The warrant for enrolling particular litigants amongst the poor, as well as being restricted to particular actions, was to last only for three years (a qualifying period which was subsequently amended more than once), although this might be renewed. By their 1710 Act, the lords provided that an advocate for the poor, once appointed to an action, should continue to act until the cause was finally decided.84 These provisions apart, it was the 1784 Act, based largely on existing prac- tice, which defined the procedure. The Act consisted of five regulations which turned what was effectively in practice a charitable obligation into a legal duty. Each December, six advocates, four writers to the signet, and four agents or solicitors were to be appointed by their respective bodies and the lists given to the senior clerk of session who would record them in the sederunt book. Litigants were to benefit from the poor’s roll only if they produced a certificate from the minister and two elders of the parish where they resided certifying, from their own knowledge, that the party was “in indigent circumstances, and altogether unable to prosecute his or her claims in a court of law.” A procedure was created for publicly intimating applications so that the opposing party had time and opportunity to make a case to the lawyers for poor challenging the
83 nrs, Court of Session, books of sederunt, CS1/8, fol. 113r; Acts of Sederunt 1553–1790, 174 (20 Nov. 1686). 84 nrs, Court of Session, books of sederunt, CS1/10, fol. 106r; Acts of Sederunt 1553–1790, 240 (9 Jun. 1710).
85 Acts of Sederunt 1553–1790, 611 (10 Aug. 1784). 86 nrs, Court of Session, books of sederunt, CS1/14, fols. 129r, 173r. 87 Ibid., fol. 129r. See the representation of the advocates for the poor presented on 8 Jan. 1760: Stewart, ed. Faculty Minute Book, 1751–1783, 93. They complained that some writers to the signet declined to agent processes and that some causes had no agent to carry them out, as well as of “many other abuses which were committed to the prejudice of these poor people.” The committee, appointed on 11 Jan., was clearly a response to this.
The part of the Writer to the signet always being to lybel the summons and draw the Memorial for Consultation, and the part of the ordinary agent being to attend the calling and in general to look after the cause on every other occasion.93
An additional clause, which appears in the Faculty minutes on 6 January 1761 but not in the ws Society minute of 24 November 1760, reads as follows: “in no
88 Acts of Sederunt 1553–1790, 480–1. 89 sl, ws Society Sederunt book 1750–1784, fol. 11. 90 Ibid., fol. 16. 91 Ibid., fol. 25. 92 Ibid., fols. 38–9. 93 sl, ws Society Sederunt book 1750–1784, fol. 113. The full text is printed in Stewart, ed. Faculty of Advocates Minute Book 1751–1783, 105–6.
94 Stewart, ed. Faculty of Advocates Minute Book 1751–1783, 105. 95 It is periodically referred to in the minutes of the ws Society, when its members were recommended to have a conference with the dean of the Faculty of Advocates: e.g. sl, ws Society Sederunt book 1750–1784, fols. 124, 146, 173. 96 nrs, Books of sederunt CS1/15, fol. 156v; CS1/16, fol. 91v. 97 Stewart, ed. Faculty of Advocates Minute Book 1751–1783, 342–3. There were earlier reports dating from 26 Jun. 1778 and 19 Jan. 1782. 98 Ibid., Introduction by C.K. Davidson, ix, xi.
Qualification
A weakness of the 1784 Act was that it did not prescribe any particular form of proof in regard to the status of a litigant who claimed to be a pauper. It did acknowledge that many were being admitted to the poor’s roll who were not entitled to such status, blaming the “want of proper information” about their status being supplied to the lawyers for the poor. However, the 1784 Act made
99 Ibid., xx. 100 al, FR339r/9, “Report of the Committee appointed by the Faculty of Advocates to con- sider of new Regulations for the Poors Roll, 26 June 1778.” 101 nrs, Court of Session, books of sederunt, CS1/16, fol. 92r. 102 Ibid., CS1/17, fol. 4v. 103 nrs, Court of Session, miscellaneous administrative papers, CS94/84. 104 E.g. nrs, Court of Session, books of sederunt, CS1/24, fol. 314 (1832); CS1/25, fols. 142 (1834), 277 (1836); CS1/26 fol. 234 (1838). In 1837, the clerk used the categories Advocate, ws, Agent and “Agents qua Advocates clerks”, an indication that members of the Society of Advocates’ Clerks (founded in 1836) were nominated to act for the poor.
There is no particular form for a certificate to obtain your Clients the ben- efit of the Poors roll. The common run of them is certifying that — is not in a capacity to maintain a law suit before the Court of Session and that therefore he is in their opinion entituled [sic] to the benefit of the Poors Roll In case the Lawyers and agents for the poor are of opinion that he has a probabilis causa litigandi.105
This formulation remained after 1784 but by 1818 there were significant con- cerns about it. By then it was the judges, concerned about an apparent increase in the number of poor cases coming before them, rather than the advocates, who made the running in bringing about reform. A Faculty committee discovered that 29 applications in the year to 12 March 1815 had grown to 35 applications the following year and 71 the year after.106 This was partly put down to the distressed situation of the times and it was noted that many cases involved landlords bringing actions against bankrupt tenants. Another reason for the increase, however, was thought to be the “loose manner in which certificates of Poverty are granted.” One remedy was to pre- scribe a new formula to be used when framing them.107 This required the min- ister and elders to certify a number of specific facts about the applicant, such as age, marital status, length of residence in the parish, personal possessions, whether or not that applicant engaged in a trade and what income was thence derived.108 This was a move away from personal opinion about an applicant’s circumstances towards verifiable facts. At the same time, the Faculty commit- tee suggested that lawyers for the poor be given greater power to examine the accuracy of the certificate and call for further evidence if it was questioned.109 It had always been possible for advocates for the poor to object to a certificate, but they lacked the power to make independent inquiries without specific sanction from the court. The committee suggested that such inquiries should be routinely possible and should run in tandem with the role of lawyers in
105 sba, D/47/70/13. 106 al, FR5, fol. 193. 107 The formula for certification introduced also features as Schedule a of the 1842 Act which set in place a much more detailed scheme. 108 For an example of a certificate in this form, from Peebles in Nov. 1819, see nrs, Peebles town council papers, B58/19/25/20. 109 al, FR5, fol. 196.
in a proportion greater than the circumstances of the times seems to war- rant; whereby there is reason to believe, that many persons have got upon the poor’s roll who are not proper objects for it.111
As well as requiring the names of advocates and agents to be printed on the margin of each of the papers submitted in the cause, the act required that no- other advocate or agent should be employed on poor’s causes than those nomi- nated annually for that purpose. It also provided that the state of the poor’s roll in each division of the court be reported annually, so that the court knew who was enjoying the benefit of the roll. On 20 November 1821 an abstract, reported to the Lord President, was engrossed in the sederunt book.112 It sets out the number of actions concerning poor litigants in the First Division in the year from 12 November 1820, indicating that out of 43 actions presented there none had been refused although the majority had yet to receive disposal.113 A significant requirement was introduced in 1842 when it was determined that there should be two advocates, one writer to the signet and one solicitor appointed annually to be “Reporters on the probabilis causa on pauper appli- cations for the benefit of the poor’s roll” in the Court of Session.114 The proba- bilis causa test had always ensured that the poor had a legal and evidential threshold to cross and actions would only be brought when the counsel and
110 The Acts of Sederunt of the Lords of Council and Session, from the 3d April 1810, to 10th February 1821 (Edinburgh: Printed for Manners and Miller, and Bell and Bradfute by Alexander Smellie, 1821), 114–118 (16 June 1819). 111 Ibid., 115–118. 112 nrs, Books of sederunt, CS1/22, fol. 48. 113 Of the 43 actions, 18 were granted, 1 renewed and there was as yet no disposal in 24. 114 nrs, Books of sederunt, CS1/27, fol. 303. The 1839 Act of Sederunt governing sheriff court practice (cap. 22, r. 135) required the two procurators for the poor to report to the sheriff whether there was probable cause. The procurators could offer no opinion on whether the party qualified for the poor’s roll but the sheriff had discretion to refuse their report: Ibid., CS1/26, fol. 82. Under the Sheriff Courts (Scotland) Act 1907 the procurators were required to give an opinion on whether the party qualified as poor, therefore the initial certificate of poverty became only prima facie evidence of poverty: see William Wallace, The Practice of the Sheriff Court of Scotland (Edinburgh: W. Green & Sons, 1909), 340.
a practise hurtful to themselves as it often incourages them to spend their time about this Place in hopes of succeeding in their application & some- times very oppressive to the other party from whom the terror of a law suit to be carried on gratis may often extort a concession to very unjust demands.
A limit of twenty sederunt days on lodging a report was proposed, although a better solution, suggested in a further report in 1782, was applied in the 1784 Act of Sederunt.116 This required publication of a petition to benefit from the poor’s roll, allowing ten days for the defender’s lawyers to provide a state of the case to the lawyers and writer for the poor which they might take into account when making their report on probable cause. Moreover, it was recommended in 1778 that a meeting be held every Christmas vacation, or as the need arose, to assess whether any of the cases being dealt with no longer merited the benefit of the poor’s roll so that they might report to the court that the case should be struck off the roll.117 There is no record of such meetings actually taking place.
Local Representation
At the local level, there is evidence of writers and procurators acting for the poor. By the end of the century, the Society of Solicitors at Law in Edinburgh
115 al, Faculty records, FR339r/9, “Report of the Committee appointed by the Faculty of Advocates to consider of new Regulations for the Poors Roll”, 26 June 1778 [henceforth “the 1778 Report”]. 116 Ibid., FR339r/9, “Report of the Committee for New Regulations for the Poors Roll”, 19 Jan 1782. 117 Ibid, the 1778 Report, reg. 3.
118 nrs, “Minute book of the Society of Solicitors at Law”, GD330/71, fol. 15. See also ibid., “Laws of the Incorporated Society of Solicitors”, GD330/108, 26 Aug. 1867, 27. 119 nrs, “Minute book of the Society of Solicitors at Law”, GD330/71, fols. 315–6. 120 nrs, “Minute book of the Faculty or Society of Writers and Notaries of West Lothian”, SC41/97/1, fol. 15. 121 Ibid., fols. 19, 23, 26, 29, 33. 122 sca, Fraternity of Writers in Stirling, minute book, PD145, entry dated 29 May 1735. 123 alsp, Arniston collection, vol. 89, no. 4, Answers for John Burn to the Petition of Mungo Haldane, 25 Apr. 1771, p. 1. 124 nrs, Sheriff court of Perth, diet books, SC49/1/71, 25 Aug. 1784. 125 nrs, Inveraray sheriff court, correspondence, SC54/23/10/1/4.
On which certificate being produced, the Procurator appointed for the poor shall be obliged to examine the case, and give their advice Gratis— and if upon examination, the Cause appears to be well founded they shall also agent & manage the same to a Conclusion Gratis. But if upon exami- nation the Cause appears litigious or ill founded, they shall in that case be at liberty to refuse their assistance…128
In the event of refusal, the procurator simply had to write to those who signed the certificate explaining his reasoning. The substance of these regulations was inserted into the Society of Advocates’ own regulations.129
126 nrs, Sheriff court book of Aberdeen, diet books, SC1/2/67, fol. 318. 127 E.g. Messrs James Spalding and John Law were elected “to officiate as Agents for the Poor for the ensuing year” at the general meeting in 1802: acaa, Society of Advocates, Sederunt book 1799–1819, D528/2/2., 30 Nov. 1802. 128 Ibid., fol. 319. 129 acaa, Society of Advocates, Sederunt book 1799–1819, D528/2/2, Regulations and bye- laws, 19 June 1799, reg. 34. This was not in the 1776 regulations.
The litigant Robert Ross, a poor horse-hirer who had relocated to Edinburgh from Inverness, had to petition the lords of session in 1766 because it was not within his power to instruct an agent in Inverness. He could not afford to employ anyone to attend to a proof in Inverness-shire which was absolutely necessary for his case. He therefore applied to the judges “craving a Recom mendation to the Sheriff of Inverness to appoint some proper Practitioner before this Court, to take care of his Affairs.”130 Where a party was not refused representation, and won his action, then he would be entitled to expenses according to the court’s published table of fees. The court would order these to be paid to the procurator who personally con- ducted the case. On the other hand, in matters prosecuted criminally before the circuit court or the sheriff, procurators were obliged to act for poor prison- ers without payment. This was a development from a regulation in 1777 which enjoined the Society of Advocates to choose two agents for poor prisoners at the circuit court in Aberdeen because such prisoners were sometimes “at a loss for agents to assist them.”131 In the event that the Society did not nominate two procurators, the sheriff declared that he would do so. In Kincardine the demand for representation for the poor came from the procurators, whose wish it was in May 1804 that the sheriff should provide in the court’s regulations for the annual appointment of one of their number.132 Assistance was to be afforded to “very poor persons” in both criminal and civil business. The procurators themselves were to advertise their nominee on the first court day of the winter session, failing which the sheriff would appoint one of them to act for the following year. What makes the Kincardine regula- tion particularly interesting is the lack of any discretion given to the procura- tor. There was no probabilis causa test. If a heritor, or the parish minister, certified that the plea appeared to be a good one, and the litigant deponed to the truth of the facts he alleged, then he would not be liable for any dues of court or the fees of the sheriff clerk or procurator for the poor. Any costs awarded would go to the procurator. Yet the procurator, it appears, had no for- mal say in whether the case should proceed. At the other end of the country, the regulations in the sheriff court of Peebles which were updated in 1789 clearly provided for the representation of the poor
130 alsp, Swinton collection, vol. 2, no. 52, Memorial and Abstract of the Proof for poor Robert Ross, late Horse and Chaise Hirer in Inverness, 26 Apr. 1766, p. 3. 131 nrs, Sheriff court book of Aberdeen, diet book, SC1/2/66, fols. 33–4. 132 nrs, Sheriff court of Stonehaven, diet and roll books, SC5/2/24, fol. 290. These are the earliest regulations which survive and they were written into the court book specifically because regulations were written in a separate book which had been lost.
that poor Country People may have Access to be redressed in a summary Way, and at small Expence; …that the Law, in these lesser Matters, may be readily applied to the Relief of the inferior People, without the Necessity of higher Prosecutions in superior Courts, which their Circumstances could not allow them to carry on with Effect.134
Sheriff court diet books often reveal the presence of poor litigants, although they rarely provide much detail. In June 1764, for example, Duncan Campbell, still a novice procurator (he was admitted only in March) was acting for “Poor James McArthur” in an action against his debtors before the sheriff substitute at Inveraray.135 Presumably, aside from his status as a creditor, his affairs were sufficiently distressed to qualify him for free assistance. It is worth noting that no attempts appear to have been made to divert fines, or sums of money con- fiscated by inferior courts, towards poor litigants like McArthur. Generally, such funds were donated to poor parishioners in general. An interesting instance arose in Glasgow in 1811 when a party attempted to bribe the judge in the commissary court by leaving two twenty-shilling notes on his doorstep.136
133 nrs, Sheriff court of Peebles, diet books, SC42/1/11, 24 Nov. 1789. 134 alsp, Hamilton-Gordon, 1st collection, new series, vol. 3, (Mo-Mu.), Answers for John Morison in Dummardoch, and John McInvan in Stank, and the Procurator fiscal of the Justices of Peace of the Shire of Perth, to the Bill of Suspended offered by Finlay McInlay in Upper-Annie, 4 Jan. 1742, p. 1, per Peter Wedderburn. 135 nrs, Sheriff court of Dunoon, roll books, SC51/2/7, entries dated 9 Mar. 1764, 26 Jun. 1764. 136 nrs, Glasgow commissary court, act books, CC9/1/99, fols. 62–3.
The guilty party was imprisoned as a warning, but the money was confiscated and given to the treasurer of the kirk session for the parish poor generally, not to assist poor litigants specifically.137 Despite these provisions, the quality and consistency of representation is questionable. Defence by counsel and agents for the poor before the criminal circuit court was criticised as perfunctory and unsatisfactory.138 From 1587 any counsel could be compelled to act gratuitously in criminal cases.139 Andrew Pringle, in the trial of three people for the murder of the Jacobite John Catanach in 1746, presented a strong defence for pannels (accused persons) “so poor as to have Lawyers appointed for them by the Court.”140 Pringle was not a serving advocate for the poor (though he held that office from 1737–1739), but as an experienced counsel in criminal cases he was a sound choice and made a strong defence. It was later alleged, however, that unless an accused commit- ted “sensational crimes” and drew attention, criminal defence tended to be carried out by young counsel who, untrained and inexperienced in criminal law, were likely to lack skill.141 Even around 1711, Lord Justice Clerk Grange noted how most counsel in Edinburgh preferred civil causes and focused much less on the criminal court ‘because they expect not so much gain by it’ and proved ‘very indifferent’ when they appered there.142 There is no reason for not assuming similar difficulties at the level of the inferior court, although there the consequences were generally less severe for the accused.
The Substance of Poor’s Causes
According to Rosalind Mitchison the manner in which “lawyers” interpreted the statutory poor law was selective in the seventeenth century and this led over time to a gap between what was said by judges in the Court of Session and parish reality on the ground. Judicial interpretation had weakened the
137 A practice criticised by Gilkie, Every man his own Procurator, 17. 138 “The sad case of James Dickson: a plea for poor prisoners,” 30 (1886) Journal of Jurisprudence: 309–15; Stoddart, “A short history of legal aid,” 178. 139 rps, 1587/7/67, Act for the furtherance and furthsetting of the criminall justice ower all the realme; Irvine Smith, “Criminal Procedure,” 438–9. 140 alsp Miscellaneous collection, ser. 16, vol. (1709–1751), Information for Andrew Fithie, Francis Anderon and Barbara Couts, Pannels against William Grant of Prestongrange, Esquire, his Majesty’s Advocate, for his Highness’s Interest, 29 Jul. 1746. 141 “The present system of conducting poor’s causes in the Court of Justiciary,” Journal of Jurisprudence 27 (1883): 1. 142 nrs, Mar and Kellie papers, GD124/15/981.
requirement for compulsory assessment of heritors (landowners who were obliged to support their parish church), so that in many parishes they were not assessed at all to make compulsory contributions for the relief of the poor. Instead, voluntary funds were stretched to meet the needs of the identified poor while efforts were made to keep the list of claimants within manageable bounds. As Professor Mitchison put it, the number of the poor was “trimmed to meet resources.”143 As a result, evidence from reported cases heard in the Court of Session did not conform to the picture represented in kirk session records. Landowners feared assessment and lawyers, who themselves were largely drawn from the landowning class, broadly shared their attitude. As a result, judges naturally tended to sympathise with heritors whenever they came into conflict with church authorities. The story of the poor law, however, is not the same as the story of the involve- ment of lawyers in cases brought on behalf of the poor. There is a significant difference between cases about the poor brought by kirk sessions and heritors, and cases brought by the poor themselves.144 In the former, the focus of debate, generally between an advocate privately employed and the procurator for the kirk, related to what was to be done to maintain “vagabond and idle persons” under the appropriate legislation.145 The latter cases, on the other hand, varied considerably and generally did not concern parish provision or the interpreta- tion of the poor law. In many actions brought by poor persons, the fact of their poverty had no bearing at all beyond entitling the case to be entered on the poor’s roll. That is not to deny the importance of cases concerning the poor law and this brief illustrative survey of poor causes will begin with one of them, an action raised by John Baxter against the parish of Crailing.146 Baxter had been born in Crailing and resided there for the first forty years of his life. For the next forty years he lived as a servant, working in different parishes, the last of which was Roxburgh. Aged eighty, and no longer able to work, Baxter had applied to Crailing for maintenance. The parish refused, leading to an action in the sheriff court in which the sheriff ordered Crailing to maintain Baxter at the rate of two shillings per week, to be reduced if the market price of oatmeal declined to a certain level. This action was advocated to the lords of session who were faced
143 Rosalind Mitchison, The Old Poor Law in Scotland (Edinburgh: University Press, 2000), 48. 144 This is not intended to criticise Professor Mitchison’s excellent book which rightly keeps its focus on the development of the poor law. 145 Car. ii, Parl.1. (1698) cap. 16, s. 3, and (an untraced) act of council 1693. Actions involving the kirk would normally involve the advocate who was procurator for the church. 146 Mor. 10573; alsp, Arniston collection, vol. 86, no. 18.
147 Kirk-session of Inveresk v Kirk session of Tranent, 1737, Mor. 10552–3; Parish of Duns v Parish of Edrom, 1745, Mor. 10553–4, Kirk session of Inveresk v Kirk session of Tranent, 1757, Mor. 10571. 148 The papers in that case can be found in alsp, Falconer collection, vol. 1, nos 143–4. 149 nrs, Eskdale regality court book, SC15/73/1, 9 Jun. 1741. 150 alsp, Arniston collection, vol. 84, no 26, The Petition of Poor James Lundie, 4 Jan. 1768. 151 alsp, Dreghorn collection, vol. 7, no. 3. Linda Colley, Captives: Britain, Empire, and the World 1600–1850 (London, 2003), 188–192.
Edinburgh ministers, for taking property which he claimed had been left to him by their father. Mackenzie’s handwritten note explained that he could not vindicate his rights unless the lords indulged him “with the benefit of the gratis roll”, and he craved their “warrand ordaining advocates clerks & writers to plead and write for me gratis in the said matter.”152 There is little absolute evidence of any decline in the quality of representa- tion given to the poor compared to other litigants, despite the youth and inex- perience of some of the counsel. In some cases, however, advocates may not have been consulted at all. A bill of advocation in 1765, on behalf of poor Agnes Johnstone, was drafted by William Hay ws, rather than counsel.153 It consists of fifteen pages dominated by a discussion of procedure and the evidence taken in a proof before the commissaries, rather than law. Agnes was seeking to prove her marriage to the late William Smith of Farthingrush whom she had allegedly married clandestinely but who, during his life, had not openly acknowledged her as his wife. Alexander Murray of Henderland answered the bill. In his lengthier response Murray, an able counsel, spared no citation of Roman law or leading commentators, such as Mascardus and Matthaeus. Ultimately, the case came down to a question of proof and the majority of the court (Lord Pitfour dissenting) agreed that the evidence of cohabitation that was offered only amounted, as Lord Gardenstone interestingly put it, to the type of arrangement a man “has with his mistress, but not with his wife.” The case was on the poor roll but it is unclear who pleaded for the pursuer. Once a claimant had obtained the benefit of the poor’s roll, it remained open to his opponent to question his financial status. The bailies and fiscal of Elgin, in defending an action brought against them by the gardener, William Innes, used this line of attack, arguing that “from any information the petition- ers have been able to recover of his circumstances, his situation is scarcely such as to entitle him to the benefit” of the roll.154 The pleadings in poor causes also sometimes contain reflections cast upon the system of representation for the poor. Alexander Lockhart argued in 1749 that the poor’s roll “is grossly abused, not to procure Justice to the Indigent and Needy, but to vex and disturb
152 alsp, Hamilton-Gordon collection, 1st collection, new series (Magistrates to Max), The Petition of Donald Mackenzie, journeyman wright in Edinburgh, 1739. 153 alsp, Swinton collection, vol. 1, no. 3; also Arniston collection, vol. 83, no. 20, Bill of Advocation, Poor Agnes Johnston, Relict of William Smith of Farthingrush, and William Smith her son, n.d. [1765]; reported, Fac. Dec., 1765–69, 81. 154 alsp, Arniston collection, vol. 177, no. 1, Petition of John Brander and Alexander Young, Bailies of Elgin, and James Sinclair, procurator fiscal of the Town-court there, 8 Aug. 1787, p. 1.
The employment upon the poor’s roll is always uncertain, and, to the agent at least, often attended ultimately with loss. But if, to these disad- vantages were added, that of being denied any remuneration in such cases as are successful, the utility of this humane institution would be utterly destroyed.157
Innes pointed out that he had expended money on fees prior to obtaining the benefit of the roll and he also acknowledged that part of the fees paid to law- yers had gone to lawyers who were not acting for the poor (presumably, this related to initial consultations).158
155 alsp, Kilkerran collection, vol. 16, no. 103, Memorial for Patrick Gib shoe-maker in Edinburgh against Alexander Crinzean shoe-maker there, 5 Jan. 1749. 156 Mor. 10555. 157 alsp, Arniston collection, vol. 177, no. 1, The Petition of Poor William Innes, gardener in Elgin, 13 Jan. 1788, p. 5. 158 Letters passed under the signet gratis if subscribed for someone on the poor’s roll by one of the writers to the signet for the poor: see, e.g. sl, ws Society Sederunt book 1785–1805, fol. 280 (June 1796).
Status
Until the tendency, in later practice, to restrict the office of advocate or writer to the poor to newer intrants, the task of acting in poor causes was one which was distributed to a mix of experienced lawyers and relative novices. In their ranks were some of the best legal minds the profession has produced, from Edward Henryson and Thomas Craig to Sir John Lauder, Duncan Forbes, Alexander Boswell and William Gloag. Acting in poor causes was no hindrance to a promising legal career and was generally regarded as an honourable, and for new men a useful, role. In later practice, it is true that few lawyers once they had ascended to the top rank of the profession undertook actions for the poor. Yet the same was true even in ancient Rome: the finest advocates, whatever they did as young men, were too busy to plead for paupers once greatness had been thrust upon them.159 There is no room to investigate at length the careers of those who held the role. However, one interesting case was that of Sir Archibald Sinclair. Admitted to the bar in March 1686, Sinclair had been appointed one of the counsel for the poor before the year was out.160 In 1688, 1689 and 1691 he was appointed one of the Faculty’s private examinators.161 Such an appointment was relatively common, but by no means universal, for former advocates for the poor. In 1690 he was one of the auditors of the Faculty treasurer’s accounts and in 1703 he was one of a committee who considered George Dickson’s petition for charity from the Faculty. A year later he seems to have been in need of aid himself, receiving 500 merks from the Faculty treasurer, with his wife and children later receiving financial assistance from the same source. In 1710 the Faculty approved when Sinclair proposed to teach civil and municipal law privately, a further sign that his lack of success at the bar was chronic. By 1720 Sinclair had died but his family still relied on charity from the Faculty for several years thereafter.162 Sinclair’s circumstances sug- gest that he was a success neither at the bar nor as a private teacher.163 His story is a reminder that failure in business, for some advocates at least, led to personal and family hardship and that advocates for the poor, despite their status, were not necessarily as far removed from those they served as might be assumed.
159 Crook, Legal Advocacy, 130. 160 nrs, CS18/163r; Pinkerton, ed. Faculty Minute Book 1661–1712, 75. 161 Ibid,. 83, 87, 91. 162 Ibid., Faculty Minute Book 1713–1750, 30, 111. 163 Ibid., 82, 87, 91, 246, 252, 269, 287.
Conclusion
On one view, the “humane institution” of free legal assistance to the poor was a great example of altruism. Lawyers, in a number of contexts, regularly expressed concern for the poor. For instance, according to his counsel the Stirling writer, John Campbell, had long seen “poor People harrassed” in his community by being needlessly cited, not in their local sheriff or burgh court, but before the admiral-depute at Alloa, where the presiding judge had the ben- efit of sentence money.164 Litigants could easily exploit the vulnerability of the poor and lawyers recognised a duty to alleviate this. Whether practice met this aspiration is, however, open to question. Certainly, tradition dictated that an advocate could be compelled by the court to act for a pauper as readily as he might be compelled to act for a paying client.165 In Scotland, this was as true in criminal cases, at least from 1587, as it was in civil matters.166 Yet according to James Gilkie, clerks who received no dues for them regularly kept the petitions of the poor away from Court of Session judges or, as he put it, the petitions were held back by “the want of a sixpence to the footman.”167 The principal clerks of session agreed in 1719 to serve the Faculty of Advocates for free in any processes in which the Faculty was involved as pur- suer of defender; but no such gesture was made for the poor.168 Inevitably, there were flaws in the system. An interesting passage in a letter from William Fraser ws in 1759 shows two sides of the matter:
nor did I ever see a client well served with Gratis Lawyers. I know [James Ferguson of] Pitfour to be a most generous man, far beyond many I know, and [he] has given his labour and writing to people in distress repeated times without fee or reward. He did it in several cases under my own management but largely in the distressed family of Lovat.169
164 alsp, Swinton collection, vol. 13, no. 37, The Answers for John Campbell, Writer in Stirling, to the Petition of Mess. Haig, Daes, and Company, Merchants in Alloa, 21 Jul. 1768, p. 2. 165 Cf. Huber, Praelectiones, ii, 148. 166 J. Irvine Smith, ed. Selected Justiciary Cases, 1624–1650 (3 vols, Edinburgh: Stair Society, 1972), ii, xxiii. Sheriff Smith points out that an accused who delayed securing representa- tion was responsible for having to appear without it. A number of accused acted for them- selves in criminal cases in the justice court in Edinburgh in the seventeenth century, despite free legal advice being available. 167 Gilkie, Every Man his own Procurator, 61. 168 Pinkerton, ed. Faculty Minute Book 1713–1750, 27. 169 nrs, Campbell of Dunstaffnage papers, GD202/68/13.
The judge David Erskine of Dun also observed that those nominated to act for the poor were often “either negligent, or superficial in their assistance.”170 Experienced lawyers working for no reward cannot always have felt moti- vated to provide their highest level of service. Younger advocates for the poor, including some excellent lawyers such as James Veitch of Elliock and Robert McQueen of Braxfield, might sometimes find that the greater experience of an opposing counsel could trump their own enthusiasm and good intentions. That does not mean they did not take the office seriously or find in it a useful opportunity for practice. For instance, when Robert Walker was appointed one of the counsel for the poor in May 1921, during the absence of John Peter Grant jun. who was to act as interim sheriff substitute at Oban for a few months, it was on the basis that his claim to appointment as poor’s counsel for the follow- ing year was not to be prejudiced.171 From the perspective of legal societies, particularly in the Court of Session, it was no doubt preferable to nominate a few members to deal with poor causes than to have the judges compel them. Yet it would be unfair if the genuine spirit of mercy which inspired and maintained the system of representation for the poor over centuries, and the efforts made by some of the lawyers con- cerned, sometimes over a number of years, were to be dismissed as a token public relations effort by a self-interested profession. It is true that individuals were relieved of a personal moral burden by exer- cising this duty collectively. But as Fraser’s reference to Pitfour suggests, law- yers individually might be moved to act for those in distress without accepting payment. The best example of this was the reaction of those lawyers, including Alexander Hay, to the plight of those prisoners accused of Jacobitism after the 1715 uprising. They were willing to risk their own reputation to assist those in desperate circumstances. The quality of mercy can be found in the sources and lawyers, even when not professionally engaged, sometimes took the trouble to argue on behalf of the poor. A letter from Hugh Forbes, one of the principal clerks of session, to the lord advocate in 1747 also concerns Jacobites, with Forbes seeking assis- tance for three “miserable wretches” who were kept confined by the magis- trates of Musselburgh, their only crime being “Poverty & Tartan, which too often appear coupled.” The magistrates, Forbes complained, had left them to die of hunger after taking away their three pence per day subsistence.172
170 Erskine of Dun, Friendly and Familiar Advices, 37. 171 al, Faculty records, FR10, fol. 458. Walker (adm. 6 Nov. 1914) did act for the poor in 1922: ibid., fol. 471. 172 nrs, Miscellaenous papers, RH15/38/105.
According to Lord Dun, any advocate who knows of someone being oppressed or denied their due but having no means to prosecute or defend their case, was bound “in charity and duty” to lend his assistance without fee or reward.173 At the same time, he noted, many people would be too ashamed “to apply for gratis service, tho’ in great need of it.” An important and constant feature was the fact that the system of represen- tation remained under the control of the lawyers and judges. The latter had the power to adjust the criteria for qualification to the poor’s roll if the number of cases began to grow. Despite the rhetoric in their pleadings, lawyers were hard- headed and knew, as did St Augustine, that there had to be some practical lim- its on what could be done for the poor. In 1757 John Maule, a baron of exchequer in Scotland, copied out a miscellany of material which David Moncreiffe had compiled when studying “in the Temple” in London.174 The volume contains rules of court from the Court of Exchequer in England, beginning in 1703, including an act of 1717 addressing the vexatious prosecution of the king’s sub- jects by those acting in forma pauperis.175 This made it clear that paupers had to be controlled; they were permitted only one counsel and had to give security for costs incurred by defenders until the time such counsel was appointed, in case their bill for admission as a pauper was dismissed. Scottish procedure was not the same, but a similar concern to exert con- trol is evident. It was thought important, in the courts as well as in the par- ishes, to distinguish the deserving poor, those of good character, from those who might prove to be merely vexatious. On the other hand, the general posi- tion in Scotland on representation for the poor compares favourably with that in the English courts, particularly in the criminal courts. In the nine- teenth century the introduction of representation for the poor required par- liamentary intervention in England in a way that was simply not required in Scotland.176 In fact, between 1425 and 1949, there was no primary legislation at all on the matter.177 Ultimately, the provision of free legal services to the poor is an important example of lawyers acting collectively to meet a social responsibility. They did
173 Erskine of Dun, Friendly and Familiar Advices, 37. 174 nls, Adv. ms. 28.4.2. Moncreiffe, like Maule, worked in the exchequer court. There seems to be no record of his being formally admitted to Inner or Middle Temple. 175 Ibid., fol. 8v. 176 David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon Press, 1998), esp. Chapter 12. 177 The 1842 Act of Sederunt begins by referring to the legislation of James i in 1425: Court of Session, books of sederunt, CS1/27, fol. 302. For the Morton and Cameron Committees and developments leading to the 1949 Act, see Stoddart, “A short history of legal aid,” 180–192.
178 Helen M. Dingwall, Physicians, Surgeons and Apothecaries (East Linton: Tuckwell Press, 1995), 239. 179 eca, Edinburgh, tcm, vol. 50, fols. 194–5. On an earlier surgeon to the poor, see Dingwall, Physicians, Surgeons and Apothecaries, 172–5. 180 eca, Edinburgh tcm, SL1/1/79, fol. 240.
The Society is pretty numerous and most of the members are respectable.1
As endorsements go, this is not the most flattering ever offered to the Society of Advocates in Aberdeen, made worse perhaps by the fact that it was written by the Society’s own treasurer. Ensuring the respectability of local members of the legal profession was one of the reasons societies and faculties of lawyers spread throughout Scotland from at least the seventeenth century. Attempts to exclude the unworthy from membership of their ranks led to a stream of litiga tion during the eighteenth century in which societies were often accused of selfish and monopolistic behaviour, but this should not detract from their essen tial purpose in identifying the common interests of members and strengthening the social and professional bonds between them. Local societies had an important role to play in maintaining the profes sional and educational standards of procurators, preserving access to justice by providing members to act for the poor and providing a safeguard against the arbitrary use of power.2 From the perspective of local judges, particularly magistrates and sheriffs, an active society of procurators in their court pro vided an element of continuity. While judges might come and go, the procura tors before a court tended to practise there throughout their working lives and thereby gained an intimate understanding of their business and the needs of their clients. So long as judges were laymen then they lacked the knowledge to determine whether a man petitioning to practise law in their court was suitably qualified to do so and it was natural that they would call on existing practitioners to determine such matters. Even when judges were themselves experienced law yers, it was convenient for them to recognise a proper role for a legal society in providing practical education through apprenticeship, maintaining internal discipline and advising on matters of legal practice and procedure. The aim of this chapter is to consider the importance of legal societies to local legal practice. As these societies modelled themselves on the two leading
1 Nrs, CS230/L/3/1, “Memorial for the President and Society of Procurators in Aberdeen Upon the Petition of Alexander Laing writer in Aberdeen”, n.d. [1780], p. 1 (per George Forbes, treasurer). 2 For discussion, see Finlay, “Legal education, 1650–1850”, 123–126.
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Context
Local societies and faculties of lawyers in Scotland still retain a place within the modern legal profession, although their significance is not nearly as great as it once was. While they sought to identify and defend the mutual interests of mem bers and to strengthen the bonds between them, building up funds to protect their own poor, they also eventually developed their own professional libraries and formed links with other societies to defend the wider interests of the profes sion.3 The nationwide response driven by legal societies to the imposition of an “attorney tax” in Scotland, in the Stamp Act 1785, had mobilised local lawyers and led them to attempt to act together, holding a Convention of Delegates in December 1785 to oppose the new legislation.4 By 1828, a “General Law Associa tion of the Practitioners in the Sheriff, Commissary, Stewart and Burgh Courts of Scotland” was active, meeting annually to discuss issues of common concern.5 The background to the short-lived Procurators (Scotland) Act 1865, which was replaced by the Law (Agents) Scotland Act 1873, is fascinating, but unfor tunately beyond the scope of the present work.6 The 1865 Act, however, marked the apotheosis of the local legal society in Scotland. Legal societies in the eigh teenth century were still developing, with some remaining very small, and they continued to proliferate into the nineteenth century. The Faculty of Procurators in Paisley, for example, was incorporated by royal charter only in 1803.7 Early societies described themselves as a “faculty”, “fraternity” or “society” and the existence and activities of some are better documented than others. Little is known of the small “Fraternity of Procurators in Cromarty” for example. 8
3 See John Finlay, “Local lawyers and their libraries in eighteenth-century Scotland” 9 (2014) Journal of the Edinburgh Bibliographical Society, 46–53. 4 Finlay, “Tax the Attornies!” 150–2. 5 Sl, ws Society Sederunt book 1819–1829, fol. 510. 6 There is some discussion in Begg, Treatise on Law Agents, 13–22. 7 Charter and regulations of the Faculty of Procurators in Paisley, incorporated 24th June 1803 (Paisley, 1803). 8 Nrs, Sheriff court of Cromarty, diet books, SC24/1/1, 4 Feb. 1801.
On the other hand, the Faculty of Procurators in Glasgow and the Society of Advocates in Aberdeen are both well known to this day, are of considerable longevity and were thriving in the eighteenth century.9 In Ayrshire, the Society of Procurators in the sheriff court made the doubtful claim in 1813 that it had “existed several centuries.”10 The Fraternity of Writers in Stirling had a dozen members in 1672, when it was already decades old, and left a minute book which reveals much about its organisation and its links to the wider legal pro fession.11 The Faculty of Writers in West Lothian, which met in Linlithgow, had more than twenty members in the first decades of the eighteenth century, although their meetings were typically attended by ten to fifteen.12 The Faculty of Procurators in Paisley, at the date of its incorporation in 1803, had fourteen members.13 In Dundee, the Society of Writers at the start of the nineteenth century was more modest but, like other societies, it was expand ing. In 1804 there were eight licensed procurators in the burgh court but by 1813 that number had increased to twelve.14 When the library catalogue of the Society was published in 1826, there were 35 members including three who did not reside in Dundee.15 While the numbers are likely to have continued to increase, the Dundee society was small compared to some elsewhere (in 1796, the Faculty of Procurators in Glasgow numbered 91; this had increased to 177 by 1828 but this was still small relative to the ws Society which had 552 mem bers in 1826).16 The largest legal societies were those in Edinburgh, Glasgow and Aberdeen. The Register of the Society of Solicitors at Law in Edinburgh, which runs from November 1781 (the Society’s royal charter, as we will see, dates from 1780),
9 The origins of these large societies are unclear, but both go back well into the seventeenth century and possibly before. Henderson suggests that the Aberdeen procurators were organised in the middle of the 16th century, although that does not mean that a formal society then existed: History of the Society of Advocates in Aberdeen, ix; see also Begg, Treatise on Law Agents, 14–15. Muirhead suggests a possible date of 1563 as the institution of the Glasgow Faculty, but this is speculative: Muirhead, The Old Minute Book, 16. 10 Nrs, Memorial for the Society of Procurators before the Sheriff Court of Ayrshire against Alexander Jamie, and Others, 25 June 1813, SC271/71484, p. 4. The claim is highly doubtful. The minute book has not been traced and may be lost. 11 Sca, Fraternity of Writers in Stirling, minute book, PD145/1. 12 nrs, West Lothian Faculty of Writers, minute book, SC41/91/1. 13 Charter and Regulations of the Faculty of Procurators in Paisley, incorporated 24th June 1803 (Paisley, 1803). 14 Dca, Register of procurators, ms 179. 15 Nrs, Papers of the earls of Airlie, GD16/57/58. 16 See also above, page 17.
Creation
A society of lawyers was recognised by the judge in the court in which they operated and this recognition, through acts in various inferior courts, might come to be shared throughout a burgh or county. However, such recognition did not create the society as a legal person or give it the status of a corporation in law. Indeed, towards the end of the eighteenth century societies became keen to secure a more permanent recognition of their legal status. The ‘Society of Procurators in the Inferior Courts’ provides a good example. This was the name under which inferior court practitioners of Edinburgh were granted a seal of cause by the town council in 1765, thus erecting them into “one Body corporate.”19 That status allowed the Society to enter into contracts in its own name and to make its own bye-laws and regulations, provided they were “first approven of by the Magistrates and Council.”20 However the “seal of cause” was essentially a medieval concept designed to secure privileges for particular groups within burghs. The 1765 grant secured to the members of the Society
17 John Ormston in 1788 and Alexander Ponton in 1792 were both admitted by the magis trates in the bailie court but do not appear to have joined the Society. James Waugh, whose application to practise in the bailie court was refused, was never a member of the Society (see infra). 18 In the Court of Session, the ws Society increased its membership by almost 50 per cent in eleven years from 1789 (see above, page 17. In Glasgow, 53 new procurators were admitted to the Faculty in the 1790s. 19 Eca, Edinburgh tcm, SL1/1/81, fols. 7–11 (6 Mar. 1765). They are better known as the Society of Solicitors-at-Law. 20 Ibid., fol. 10.
the sole and exclusive priviledge of exerceing the office and business of Procurators before all the Courts held by the magistrates of Edinburgh in all time comeing hereafter.
All others, except for members of the Faculty of Advocates, were prohibited from pretending to do the same. It was effectively equivalent to the acts of the judges in the commissary court in 1707, and later in the sheriff court in 1765, by which the Society’s exclusive privileges in those jurisdictions were recognised.21 Therefore, the seal of cause was a local recognition of rights which, like the judicial acts in favour of the procurators, might with relative ease be removed or amended by the authority which granted it. The members regarded none of these grants as being “sufficient to constitute this Society as a legal corporation.”22 Lord Bankton contrasted societies erected into “bodies politick or incorporations”, by Act of Parliament or royal patent, with “unlaw ful combinations.”23 This touched a nerve for lawyers because the latter phrase was used in litigation to attack their societies as monopolies from at least the 1760s. Certainly, the Edinburgh procurators felt disadvantaged because they lacked incorporation in the modern sense which had come to be associated either with royal charter or special Act of Parliament.24 As a result, the members of the Society petitioned the crown for a royal charter of incorporation, which was granted on 12 April 1780, and they were erected “into one corporation or body-politic” under the title “The Society of Solicitors before the Commissary, Sheriff, and City Courts of Edinburgh.”25 This soon led to a lawsuit, after the Edinburgh Gazette published a lampoon by way of a false advertisement. This mocked the pretensions of inferior court practitioners in seeking royal approval, by mischievously suggesting that the “equally reputable” caddies, “or running stationers” in the city were to seek a royal charter of their own. The intent to injure was clear, it was argued, from the fact that on the day the Gazette was published a copy was deliberately sent
21 In fact, the formal act in the sheriff court was made on 16 May 1765, two months after the seal of cause was granted: ecl, Register of the Society of Procurators of Edinburgh, 1707, fol. 14. 22 Slsp, 192:8, The Petition of Robert Gray, Preses, John Watson, Treasurer and the other Members of the Society of Solicitors, 27 Feb. 1781, p. 2. Cf. James Colston, The Guildry of Edinburgh: Is it an Incorporation? (Edinburgh: Colston & Co., 1887), 82. 23 Bankton, Inst., 1.2.18. 24 Erskine, Inst., 1.7.64. The Merchant Company of Edinburgh had taken a lead in this, being erected by royal charter into an incorporation as early as 19 Oct. 1681: Colston, The Guildry of Edinburgh, 79. 25 Slsp, 192:8, The Petition of Robert Gray, etc., 27 Feb. 1781, p. 2.
is this not representing the petitioners as a society of men, who, for the sake of a little money, would as readily procure in the most extensive sense of the word, that is, pimp, for a client, as manage his law-business as procurators?27
The whole advertisement, he argued, was calculated to represent the solicitors “as a society of low, dishonest persons”, an ignorant group unworthy of the mark of royal favour they had been given. There had been no such controversy after the Society of Procurators in Aberdeen had received the first of its three royal charters, on 27 January 1774, by which it was similarly erected into a “body-politic” (corpus politicum).28 This narrated that the fire in which its founding documents had been destroyed had deprived the Society of evidence of its original constitution, therefore, so that it might safely manage its funds and carry out its activities, a new incorpora tion was granted.29 Even so, in 1776 the Society petitioned the sheriff-substitute of Aberdeen asking that its “private Laws Constitutions rules and ordinances” should be read publicly in his court, recorded in the diet book, and granted his authority.30 The substitute agreed. On 6 June 1796 the Faculty of Procurators in Glasgow also obtained incorpo ration by royal charter. By the time of the Procurators (Scotland) Act 1865, soci eties or Faculties of writers or solicitors had done the same in Banffshire, Dundee, Paisley and Perthshire.31 The wording of the Aberdeen, Glasgow and
26 Slsp, The Petition of Robert Gray, and other Members of the Society of Solicitors, 27 Feb 1781, 192: 8, p. 3. 27 Ibid., p. 9. 28 Henderson, Society of Advocates in Aberdeen, xiv. Further charters were granted in 1799 and 1862. The 1799 charter changed some financial limits but also changed the incorpo rated name to the Society of Advocates in line with tradition. Erskine equated the “body- politic” to the Roman collegium or universitas: Inst., 2.3.41. 29 Henderson, Society of Advocates in Aberdeen, 2–3. 30 Nrs, Sheriff court of Aberdeen, diet books, SC1/2/ 58, fol. 191. 31 Anon., “Notes on the judicature commission and its work,” Journal of Jurisprudence 13 (1869): 16. Some societies, such as the Faculty of Procurators in Greenock in 1816, were still incorporated under a seal of cause: gca, TD501/1/11.
Edinburgh charters suggests that incorporation was desirable largely because it was thought to facilitate the management of large funds which had built up for “decayed members” and the widows and orphaned children of members.32 It was later asserted, in regard to the Glasgow Faculty, that the charter was fraudulently obtained as an attempt to impose a monopoly in favour of mem bers and those apprenticed to them; unlike in Edinburgh, the Faculty had no seal of cause, or other authority for excluding strangers, beyond the recogni tion of its own customary practice.33 It is perhaps salient to remember that, like the ws Society, the Glasgow Faculty and the Society of Advocates in Aberdeen, many lesser societies did not have their original founding documents (assuming such ever existed). The Fraternity of Writers in Stirling, for example, had a minute book that com mences in 1672.34 According to the flyleaf, however, “good acts & ordinances wes formerlie maid & observed be the brethren” but did not appear in the book which, in particular, lacked the “legal preface & legal form” of a society which was thought to have existed at least thirty years before the first entry. The fact that their origins dated back to time immemorial could be turned to advantage, as it certainly was in the Glasgow case, because it was difficult to deny the exis tence of some lost but original authority underpinning long-standing practice.
Admission to Practise
In 1790 the Faculty in Glasgow resolved that all future petitions for entry “should be moved in open court and that intimation of their intention shall be pasted up in the Court Hall of the Tolbooth” eight days before a candidate pre sented his petition.35 Petitions for entry had long been presented in open court following notice and it was equally common for the presiding judge or magis trates to refer the question of a candidate’s qualification for admission as a procurator to a committee of practitioners in the court (see page 253). There were two elements to this process. First, the practitioners would assess the candidate’s character. Normally they would already know him through his hav ing been apprenticed to one of their number. Alternatively, testimonials of good character would be required. Secondly, the candidate would be examined
32 The charter for the Faculty of Procurators in Paisley in 1803 owed much to the recent Glasgow example. 33 Gul, Spec. Coll., Mu14-a.11, The Petition of John Dinning, Writer in Glasgow, 25 Nov. 1816, p. 15. 34 Sca, Fraternity of Writers in Stirling, minute book, PD145/1. 35 Rfpg, Sederunt book 1761–1796, fol. 101.
36 Nrs, Sheriff court of Nairn, court books, SC31/1/15, 18 Jun. 1784. 37 Nrs, Sheriff court of Cromarty, minute books, SC24/1/1, 21 Dec. 1774. 38 E.g., nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/59, 4 Jul. 1777. 39 Finlay, ed. arnp, i, no. 646. 40 Alsp, Craigie collection, vol. 46, no 9, Answers for John French To the Petition of James Petrie, 9 Jul. 1754 (also in Miscellaneous collection, ser. 5, vol. 4, no. 1). 41 Nrs, Commissary court of Aberdeen, petitions for admission of procurators, CC1/4/1, 28 Jull 1743; in the sheriff court, ibid., Sheriff court of Aberdeenshire, diet books, SC1/2/31, 14 Apr. 1748. 42 Eca, Edinburgh tcm, SL1/1/81, fol. 7.
Illustration 4 Copy complaint brought against James Petrie by the fiscal of Aberdeen in 1754, containing notes of the defence presented by William Grant. alsp, Craigie collection, vol. 46, no. 9. Reproduced by permis- sion of the Keeper of the Faculty of Advocates.
First, that before any person can be admitted to practice as a Procurator before the sheriff court, He must previously serve as an apprentice to a Procurator for the space of Three years, And after the expiry of his inden ture continue three years longer and attend the said court the space of six years including the space of his indenture. Secondly That when any per son who has served and attended as aforesaid comes to apply to enter Procurator The Society of Procurators of Edinburgh must be satisfied as
to his moral character and he must undergo a private Examination of his Qualifications before the said Society or a Quorum of them, which is hereby Declared to consist of seven of their number, and upon the Societys being satisfied as to any such persons Qualifications they are to remitt him to the Sheriff of Edinburgh for a public examination in the same way and manner that is practised before the Commissary and Baillie Courts of Edinburgh.43
A few points are worth noting. The requirement of an apprenticeship with an existing member of the Society ultimately gave existing members, who selected their apprentices, control over the number of members. In later cases before the Court of Session, rules of this kind in other societies were attacked as unfair. Insofar as the impression is given that it was the Society that admitted procurators before the sheriff court, it is false. As discussed below, it was always a matter for the judge to admit procurators in his own court. However, no judge would lightly ignore the wishes of the existing procurators and many societies effectively exercised a veto. Finally, the focus on moral fitness and education is the same as that applied by the Faculty of Advocates and the influence of developments in the Court of Session in the second half of the seventeenth century is clear. The formulation of the rules in 1707 and 1765 did not take place in a vacuum.
The Judicial Role
Admission to a society of procurators logically followed admission as a procu rator in the court but over time practice changed. It was always the case that the judge had the ultimate right to determine who was admitted to practise in his court, just as he enjoyed the right to discipline, suspend, or remove procu rators. In the long run, however, the judge’s discretion was reined-in as societ ies gained in standing and influence. Even in the seventeenth century, judges were sometimes expected, or required, to adhere to the wishes of societies of lawyers particularly if they were personally members. In Stirling, the judge in the commissary court was clearly regarded by the Fraternity of Writers as being subject to their direction, at least in relation to their own disciplinary rules. In 1688, when Andrew Monro, the commissary, refused to sign one of their acts, the Fraternity ordered that he
43 Edinburgh Central Library, Register of the Society of Procurators of Edinburgh, 1707, fols. 15–16. Contractions expanded.
the Procurators duly admitted Members of the said Society have been in use to enjoy the exclusive privilege of acting as Solicitors before any Court of Banffshire, deleting the words in italics.45 Thus changed, the charter now read:
The said Society has been recognized by the sheriff and commissary of the said County of Banff, and consists of Procurators enjoying the privi lege of acting as Solicitors before every Court in Banffshire.
The change was a subtle but interesting one. It made clear the independence of the judges in admitting procurators, and that not all procurators required to join the Society.46 This was in line with eighteenth-century judicial practice, however much local societies sometimes attempted to assert their indepen dent right to a monopoly. The 1839 amendment, on the other hand, may reflect a shift in judicial atti tude that may have been influenced by the increasing prevalence of societies incorporated by royal charter. The Glasgow Faculty’s charter was clearly predi cated upon the procurators’ having an independent monopoly on admission and the Court of Session, in 1817, proved very reluctant to declare that this was contrary to law. In the case of John Dinning, a Glasgow writer who challenged the exclusive right of Faculty members to practise in the courts of Glasgow, Hamilton and Campsie, the majority of judges took refuge in the force of immemorial custom and rejected an argument that the charter had been
44 Sca, Fraternity of Writers in Stirling, minute book, PD145/1, 29 May 1688, 1 Aug. 1691. 45 Nrs, Home Office, Miscellaneous Papers, HH5/15, “Petition by the Society of Solicitors of Banffshire for a charter of incorporation.” 46 In Banff itself, the Society seems to have been established about 1825; eighteenth-century court records clearly indicate that the sheriff admitted procurators before him without reference to the existing practitioners in his court, e.g. nrs, Sheriff court of Banff, diet books, SC2/1/12, 29 Nov. 1757.
47 The judgments in Dinning, which is not reported, are précised in Faculty of Procurators in Glasgow v Douglas and Hill (1851–2) 14 D. 280. The pleadings, and a summary of the judg ments can be found in gul. Spec. Coll., Mu14.-a.11. 48 Gul, Spec. Coll., Mu14-a.11, “Notes of debate and opinions of the Bench at advising the process Dinning agt. The Faculty of Procurators of Glasgow”, 27 May 1817, p. 13. 49 Faculty of Procurators in Glasgow v Douglas and Hill (1851–2) 14 D. 280 at 287. 50 My italics. This seems at odds with the proposition in the Dinning case which was that such a privilege had long been recognised before the charter was granted. 51 The case is discussed in Finlay, “Pettyfoggers, regulation and local courts,” 46–7. On Sprott, see Finlay, ed. arnp, ii, no. 1890. Papers are found in slsp, 192:2 and nrs, Court of Session, Bill Chamber, CS271/37845, and in the Arniston Collection (below).
In point of Equality it is worthy of notice that a twenty years apprentice ship with a Procurator in this Court will not entitle any one to be admit ted a Writer to the Signet, and in point of expediency it is equally worthy of attention that there does not occur once in seven years a Single ques tion connected with the Law Merchant in the Chambers of Nine-tenths of Writers to the Signet.55
The privilege of the judge-admiral depute to regulate the appointment of proc urators appears to have been accepted in the Court of Session, which merely asserted the equitable power to make extraordinary appointments when nec essary. It was clear that the judge’s power of choice could not be removed with out legislation.56 When a new judge-admiral increased the limit substantially in 1790, it was over the strong objection of the existing “Procurators of Admiralty” as the practitioners styled themselves. Surprisingly, however, the
52 Alsp, Duplies for James Philp, Esq; Judge of the High Court of Admiralty, to the Replies offered for William Sprott Sollicitor [sic] at Law, 6 Mar. 1781, Arniston Collection, vol. 142, no. 33, pp. 2–3. 53 On the numerus clausus concept, see John Finlay, “Lawyers and the early modern state: regulation, exclusion, and numerus clausus,” Canadian Journal of History 44 (2009): 383–410. 54 Alsp, Arniston collection, vol, 142, n. 33, Bill of Advocation for William Sprott, 6 Mar. 1781, p. 2. 55 Nrs, Court book of Hodson Cay, judge-admiral, AC15/6/A, fol. 47. Abbreviation expanded. 56 Ibid., fols. 42–43; Finlay, “Pettyfoggers, regulation and local courts,” 47–9.
Litigation over Admission
Sprott’s case was not unusual. During the course of the century, the question of what scope procurators had to influence the admission of new practitioners in
57 Nrs, Court book of Hodson Cay, judge-admiral, AC15/6/A, fol. 50. The three successful candidates brought the number of practitioners up to 21. 58 Nrs, Linlithgow burgh records, diet books, B48/8/19, 6 Jul. 1776. There are many other examples, e.g. John Boyd (25 Mar. 1794), William Wyse (14 May 1803). 59 See Appendix, no. 8.
60 Ibid., fols., 17, 20. 61 Sl, Answers for The Society of Solicitors before the Commissary, Sheriff, and City Courts of Edinburgh, To the Petition of John and Thomas Robertson, Printers in Edinburgh, 16 Jan. 1781, slsp, 192: 8. 62 Nrs, Court of Session, extracted processed, 1st arrangement, Inglis office, CS233/Y/1/21, “Overtures humbly offered Regulation of the Baillie Court of Leith”, Reg. 23. In the case of the Edinburgh writer William Chalmers in 1760, the rule had been apparently affirmed in the bailie court of Leith: Ibid., “Answers for the Society of Procurators at the Court of Leith”, n.d., p. 1. 63 Ibid., “Minutes John Young Writer in Edinburgh now Residing in Leith Against The Procurators of Leith,” p. 6 (per Robert McQueen).
Such arguments were less clear-cut than simple objections based on charac ter, such as occurred in the case of James Gilkie when he petitioned to become a procurator in the sheriff court of Berwickshire in 1764.64 A writer in Duns named John Cockburn objected. Gilkie, formerly a messenger, was described as “a very dangerous man to society” and was alleged to have been involved in various malpractices. He had been imprisoned for eight days by the order of the lords of session in 1760 for “unjustifiable practices” in taking advantage of a litigant; he had also been sequestrated and imprisoned for debt. The sheriff accordingly refused his petition for entry. He made a number of findings-in- fact which portrayed Gilkie as a man who found clients “among the lower and more ignorant class of people” and then exploited them for his own gain. When the case was advocated to the Court of Session, even Gilkie’s own former apprentice-master, William Wallace, was a witness against him. Despite this, Gilkie eventually succeeded in being admitted as a procurator in 1780, although he died before taking the oath. In Dumfries John Bushby, whose character was also attacked, was more suc cessful but still had to fight his way into the local society of procurators in 1763. That case also went before the Court of Session where Bushby was cast, by his counsel, Alexander Lockhart, as the victim of oppression.65 The sheriff-substitute and eleven of the procurators in the sheriff court, he alleged, committed “man ifest injustice and iniquity” for conspiring to reject his petition to be examined for admission as a procurator, without assigning any reason. Bushby had been raised in England and had worked for an attorney in the northwest of that country before his parents settled in Dumfries in 1753. Given the amount of cross -border trade, he thought to use his English contacts to help establish himself as a writer in Dumfries. In 1759 he became apprenticed to John Clark, writer in Dumfries, by whose permission he studied in the Scots law class at the University of Edinburgh in 1761/2 and was admitted a notary public in March 1762. The sheriff-substitute and the procurators, whose counsel was Frances Garden, argued that a sheriff had discretion to decline a petition, particularly when there were already too many procurators in his own court. They denied utterly the relevance of Bushby’s nationality, but claimed that he had not regu larly completed his apprenticeship. In addition, they made much of his poor local reputation and detailed his relationship with the late Sir William Grierson, alleging that he had improperly taken advantage of a man “reduced by age and
64 Application given in by James Gilkie for being admitted Procurator before the Sheriff court of Berwickshire, 1764, SBA/74/7. 65 Slsp, F20: 85, The Petition and Complaint of John Bushby, Writer in Dumfries, 25 Jan. 1763.
66 Ibid., Answers for John Goldie, sheriff-substitute of Dumfries, Thomas Carlyle, Archibald Malcolm and ors, procurators before the sheriff-court of Dumfries, 8 Feb. 1763, p. 13. 67 Ibid., p. 5. 68 Nls, Acc. 13218/3, fol. 38. 69 Slsp, George Peat, writer v James Kyd & anr, Oct. 1766, 134: 28. 70 See Finlay, Community of the College of Justice, 168.
He relied on the proposition that a suitably qualified lawyer of unexception able character should be allowed admission to any inferior court. The only potential counter-argument was whether a veto on economic grounds would be permitted. This was an argument that received a new emphasis in the High Court of Admiralty in the Sprott case in 1781.71 This was not an inferior court but its busi ness was on a modest scale (in 1781 there were only three commissioned procu rators) and successive judges had only appointed a new procurator on the death or resignation of an existing one. Such a practice was not unprecedented in Scotland and can even be found in the earlier history of the Court of Session.72 As noted above, the limit, though increased in 1790, was retained. The justification for this was the specialist knowledge gained through experi ence of working full-time in the court. If a few lawyers specialised there, the more business each would have and the more time they could devote to the intricacies of the law merchant and the ius gentium. The public benefited from retaining a small coterie of specialists able to present the best arguments to the judge. Opening admission to all, on the other hand, would force experienced admiralty practitioners to supplement their income by finding work in other courts, damaging the public interest as well as the reputation of the admiralty court. A free market economically, in other words, could lessen the quality of legal pleading in the court and potentially have a corresponding effect on the soundness of judgments based on the arguments of less specialised procurators. Such a case was still convincing in the 1790s but only in the peculiar circum stances of the admiralty jurisdiction. Elsewhere, in disputes arising over admission to practice there was clear recognition of the economic issues at stake both directly in terms of the num ber of practitioners but also indirectly in maintaining the character of the pro fession. One of the best-documented cases involved Alexander Laing, whose alleged poor character and financial mismanagement attracted the opposition of the Society of Advocates in Aberdeen in 1780.73 The case is a good reminder of why societies of lawyers existed in the first place because the argument was centred on the view that admission to legal practice was a transformational validation of a man’s standing in the local
71 On this paragraph, see the sources cited in Finlay, “Pettyfoggers, regulation and local courts,” 46–50. 72 Finlay, “Advocates unlimited,” 212. 73 Nrs, CS230/L/3/1, “The Petition of Alexander Laing writer in Aberdeen”, 8 Jan 1780. On this case see also slsp, 1782, 177: 8, p. 2, and Finlay, “Pettyfoggers, regulation and local courts,” 56.
the office of an Ordinary Procurator in this Court which includes the double characters of agent & Lawier, is of very considerable trust and ought to be confined to men of unblemished characters and decent Credite.74
Laing, they alleged, was neither. Like Bushby, he had attended the class of Scots law at the University of Edinburgh. But twenty-three advocates objected to his admission to their Society and, as in the case of James Petrie half a century before, the reason was his reputation. Laing, it was thought, spent too much time in low company and there had been allegations of financial wrong doing and the cheating of clients. Bringing the profession into disrepute threatened the livelihood of all who practised it. For his part, Laing wanted his competence tried by the commissary himself or by “unprejudiced and impartial men.”75 Similarly, the Edinburgh Society of Solicitors refused to take James Waugh upon his trial for admission and effectively prevented him practising in the burgh, commissary and sheriff courts. Waugh’s complaint, that he had been defrauded of his right “by the narrow prejudices and private views of some self interested brethren of the society” were severally rejected, in January and February 1793, by the judges in each of the courts concerned.76 Waugh was thought unfit in terms of the “good character and deportment” requirements of the Society’s 1780 royal charter which formed the legal basis for rejecting him. As was usual in such cases, his petition for entry had been publicised amongst members and time set aside for objections to be made and they duly were in relation to his integrity.77 This was regarded as a particular issue in the
74 Ibid., “Memorial for the President and Society of Procurators in Aberdeen Upon the Petition of Alexander Laing Writer in Aberdeen,” n.d., fols. 3–4. 75 Ibid., The Petition of Alexander Laing, 31 Jul. 1780. 76 Nrs, Court of Session, Bill Chamber, CS271/47665, Answers for the Society of Solicitors before the Commissary Sheriff & City Court of Edinburgh To the Bill of Advocation offered for James Waugh, Writer in Edinburgh, 5 June 1793, fol. 2. On Waugh, see Finlay, Community of the College of Justice, 169, 172. 77 Nrs, Court of Session, Bill Chamber, CS271/47665, fol. 10.
the law may be often abused in more obscurity, and therefore with greater hopes of impunity, in the one situation than in the other, and there may be infinite mischief and oppression done by a practitioner of indifferent character in cases so small, and where the party is so poor, that he need hardly fear being called to account.78
Waugh had, it seems, sometimes engaged in the “low & disreputable” line of debt collecting, effectively acting as a sheriff’s officer, during which time he had twice been committed to the Tolbooth as a prisoner.79 One of the objec tions to him was that he had practised, improperly, “on his own account, under the name of others.”80 Without admission to the Society he was not permitted to practise, but he had blatantly ignored this. A particular complaint related to his conduct when employed as a clerk by the solicitor William Storrie.81 While Storrie was indisposed, Waugh is alleged to have uplifted funds from his client without accounting for them and brought actions against individuals for sums owed to Storrie that he then pocketed personally. He was also alleged falsely to have informed Storrie’s clients that his master was unable to carry on business and to have advised some of them to employ him since he was doing business for himself. Waugh’s conduct and reputation was such that apparently he had already been refused admission as a procurator before the bailie court of the Canongate.82
Unlicensed Practitioners
The question of admission, particularly attempts to create monopolies through controlling admission, is closely related to two other features by which societies
78 Ibid., fol. 15. 79 Ibid., fol. 22. 80 Ibid., fol. 19. 81 Ibid., fols. 41–3. 82 Ibid., fol. 52.
many sufficient members lost their bread, and many irregularities crept in amongst them, to the great discouragement and reproach of the Society, and to the great hurt of the Nation.87
83 Nan Wilson refers to the general concept of “role preservation” in her sociological discus sion of the Faculty of Advocates: Wilson, “The sociology of a profession,” Chapter 9. 84 Rfpg, Sederunt book 1796–1832, fols. 317–18. 85 [Buchanan], Reminiscences, 9. 86 Nrs, Court of Session, Bill Chamber, CS271/71484, Memorial for hm Sheriff-depute of the County of Ayr, 28 June 1813, pp. 18–19. 87 Sl, ws Society, Sederunt book 1714–1732, fol. 430 (16 Nov. 1731).
It was noted in 1731 that attempts had been made to remedy the situation since the accession of George I in 1714, with care having been taken to rectify abuses and ensure enforcement of the Society’s regulations through fines, sus pensions and the “absolute deprivation” of greater offenders. This was also linked to stricter standards in the examination of those applying to become members. Irregular practices still continued, however. In 1772 another Act of Sederunt had to be introduced, promoting the formation of what would become the Society of Solicitors in the Supreme Courts, because men were soliciting causes in the Court of Session who were not properly qualified or admitted in terms of the 1754 regulation.88 The lords required those admitted as agents to have an annual meeting on the first Tuesday in July, to elect a preses, clerk and examinators each year, and effectively to function as a regular society of law yers. While the judges took this opportunity to reinforce the rules about who could agent before them, the problem of irregular practitioners was still not resolved even in the Court of Session and it was an issue which, for over a century, continued to plague legal societies in the inferior courts. The ws Society, with its relatively rigorous organisation, was at least reason ably placed to police the issue. Its officers could visit members’ writing cham bers to ensure that they observed the prohibition on allowing agents to work in them. Following one such visitation in 1722, William Wilson ws was compelled to appear before a committee of his brethren.89 He admitted that he had sublet one of the rooms in the house where his offices were located to the writer John Dickson. Dickson’s servants wrote in the same room where Wilson’s servants were writing and this was a clear transgression of the Society’s regulations. Another four writers to the signet also had cases to answer before the same committee for similar alleged offences. The core and exclusive business of the writers to the signet was the sub scription of certain letters passing under the signet. Members who suffered letters to be subscribed by others fell under the discipline of the Society. Following a conference with some of the unlicensed agents, the Society’s com missioners agreed to one concession in 1723 whereby, in urgent cases, agents or their servants might be permitted to write bills of advocation and suspen sion.90 However, these would still have to be subscribed by a ws or his servant and the full dues would be payable as if the bill had been written by the servant of a ws.
88 Acts of Sederunt 1553–1790, 575 (10 Mar. 1772). 89 Sl, ws Society, Sederunt book 1714–1732, fol. 131. 90 Ibid., fol. 165.
In other courts, legal societies were also determined to prevent non-members from participating in business. A special meeting of the Society of Advocates in Aberdeen was called in January 1783 to consider a complaint against two members who had permitted the messenger James Walker to agent causes in their names in the burgh court. In particular, Walker had produced a letter from the advocate John Durno which authorized him to carry on a cause before the magistrates. The members decided that the Society’s regulations, which applied in all the courts in Aberdeen, had been contravened. It was noted that “sundry agents” were attending the courts and carrying on causes in the name of procurators who were recent apprentices, not entitled to act as agents, and had not paid the prescribed sum under the regulations for a licence to prac tice.91 In 1789, the Society again noted that several persons were using the name “procurator” in a way that was contrary “to the express regulations of the Society, and of a late Act of Parliament.”92 The Act referred to was the Stamp Duty Act 1785 which required annual certificates to be issued to practitioners, legislation which was much resented but, for the purpose of identifying autho rised practitioners, potentially useful.93 The Society of Solicitors in Edinburgh heard evidence from James Rae in 1792 that he had been employed to appear by a Mr Heron, over the period of six weeks, in a number of processes for which, on average he had been paid seven shillings and six pence.94 He had drawn none of the papers in those processes personally “and believed they had been drawn by Mr Heron himself who cor responded with the parties.” Heron was called to appear and the Society’s regu lation read to him. He acknowledged he had conducted some processes but claimed to be in ignorance of the regulations, promising not to contravene them in future and his apology was accepted.95 Apprentices, such as John Young, who had trained with procurators in other courts, continued to be regarded as “strangers” and to create controversy. This was the objection in Glasgow to Hugh Knox in 1796. Knox had been bound as an apprentice to his uncle, John Dillon, an agent in Edinburgh who had long confined his practice to the Court of Session.96 It was alleged that Knox had
91 Acaa, Society of Advocates, Sederunt book 1777–1799, D528/2/1, 27 Feb. 1783. 92 Ibid., 19 Feb. 1789. 93 25 Geo. iii, c.80. See, generally, Finlay, “Tax the attornies!” 94 Nrs, Register of the Society of Solicitors, GD330/71, fols. 38–40. 95 Ibid., fols. 41–2. 96 John Dillon was admitted to the Faculty in Glasgow on 1 Apr. 1777: rfpg, Sederunt book 1761–1796, fol. 69. He was admitted as an agent in the College of Justice in Edinburgh on 25 Feb. 1794: nrs, Books of sederunt, CS1/18, fol. 18r.
97 Rfpg, Sederunt book 1796–1832, fol. 23. 98 See Act of 23 Jun. 1791: Ibid, Sederunt book 1761–1796, fols. 199–202. Two months was pre scribed in the Glasgow regulations of 30 Mar.1780, reg. 5: Ibid., fol. 86. In the Edinburgh Society of Solicitors, a master failing to book an apprentice in time was fined £5 sterling: nrs, Register of the Society of Solicitors, GD330/71, fol. 18. 99 Rfpg, Sederunt book 1796–1832, fo 65. The booking money varied depending on how quickly the indenture was presented after its execution. In 1797 it was specified to be two guineas if presented within two months or five guineas if presented after two months but within six. 100 Ibid., fol. 46, reg. 8.
Apprenticeship
Admission The case of Knox raises the question of the regulation of apprenticeship by societies. Once again, the model was the ws Society. In January 1727 the Society had made a strong enactment against abuses in respect of apprentices. This related to “unbecoming Practices” which had emerged because the servants of agents and “other Unfreemen” were entering into indentures with writers to the signet,
albeit they neither give their pretended Master any due Service, nor reside or were in his Office or Chamber; and that in open Breach of, and downright Opposition to the several laudable Laws and Acts of the Society.103
The system described in this enactment required indentures, within 60 days of their date, to be presented to one of the three commissioners in the Writers’ Hall. An abstract of each indenture, recording the date, the apprentice fee (if any), and duration was to be drawn up and recorded for which £1 10s Scots was to be paid to clerk. A further 12s Scots was to be paid to the officer of the Society plus £1 4s to the extractor. When the abstract was recorded, the master was to cause his apprentice to pay to the treasurer, for the use of the poor,
101 Nrs, West Lothian Faculty of Writers, minute book, SC41/91/1, fol. 78. The minute book fell into private hands. Robert Turpie, a former supervisor of excise, purchased it in Edinburgh, in 1844, from “a dealer of Old Books in Nicolson Street.” 102 Nrs, Linlithgow sheriff court, SC41/31/1, 11 Sep. 1747. The petition no doubt anticipated the possibility of the appointment of a new sheriff depute in 1748. 103 Sl, ws Society Sederunt book 1714–1732, fols. 260–262; nrs, RH15/21/18. The acts of 13 Mar. 1655, 14 Nov. 1661, 22 Feb. 1666, 19 Mar. 1694, 26 Jun. 1699, 19 Feb. 1722 were specifi cally mentioned. The last, however, is not in the sederunt book and may be an error for 2 Jul. 1722.
10 merks Scots. The date of presenting and recording of the abstract was to be marked on the indentures and subscribed by the commissioner. No person would petition to be admitted as a ws without producing his discharged indenture, properly endorsed and subscribed, and swearing that it was truly subscribed on the dates represented. Members had to submit a list of the apprentices and servants in their chambers annually before 1 February or have their letters stopped at the signet office.104 Like other aspects of the system, this was not new. In 1709, for example, David Watson, one of the under-keepers of the signet, was instructed to visit writers’ chambers and “take up Lists of Apprentices and to report them to the Theasaurer [sic] two tymes every Session.”105 In 1703 such lists were to be given into the under keeper in order to ensure that the required 10 merks were paid.106 Complaints about non-payment inspired an audit in 1710, when lists of apprentices from 1706 were to be com pared to the treasurer’s accounts and a report made to one of the Society’s committees.107 Concern at the unsuitability of some apprentices led the ws Society in 1772 to enact a further regulation whereby leave had to be obtained before a new apprentice could be received.108 The master had to petition the keeper and commissioners setting forth the name, designation and education of a pro posed apprentice and the apprentice fee to be paid. Leave was granted by means of a warrant without which the Society’s clerk could not record any indenture. These regulations reflect the communal significance of taking on a new apprentice. Under the 1799 regulations of the Society of Advocates in Aberdeen, any member intending to do so had to intimate his intention to the committee of examiners which was appointed annually.109 The young man’s name, age, designation and educational background had to be described and a certificate of his having studied Latin provided.110 If the committee was satisfied with the character and qualifications of the nominee, then the master was authorised to enter into indentures with him (the fee was specified to be not less than 25 guineas). Once executed, the indenture was to be presented to the treasurer for
104 Sl, ws Society Sederunt book 1714–1732, fol. 259. 105 Sl, ws Society Sederunt book 1701–1714, fol. 315. 106 Ibid., fol. 73. 107 Ibid., fol. 324. 108 Sl, ws Society Sederunt book 1785–1805, fol. 245. 109 Acaa, Society of Advocates in Aberdeen, Sederunt book 1799–1819, D528/2/2, Regulations and bye-laws, 19 June 1799, reg. 15. 110 This was similar to the system in Glasgow and Edinburgh.
Duration
The period of apprenticeship required of a writer to the signet varied over time. From 1610, a seven-year apprenticeship was required. In 1629 it was enacted that no-one under the age of 25 should be admitted. When the previ ous acts were reviewed in 1722, it was noted that abuses had crept in, with men having been admitted unlawfully to the Society “to the great Detriment and Discouragement of others.” As a result, the regulations were modified, so that
every Candidate for the office of a wryter to the Signet shall have served at least three years by written Indentures with a wryter to the Signet and be oblidged to produce such Indentures with a Discharge thereof to the keeper and Commissioners before he can be admitted to tryall Except the sons of wryters to the signet who shall serve their fathers at least for the space of three years whether with or without Indentures.112
This was quite a dramatic change, perhaps too much so because the three-year period was modified to five years in 1753 after complaints that it was insuffi cient.113 It was argued in relation to the Faculty of Procurators in Glasgow that longer attendance as an apprentice provided added assurance of probity because character flaws would be more likely to surface prior to formal admis sion as a procurator.114 Minimum ages are sometimes specified. In their 1792 regulations, the Edinburgh Society of Solicitors would not accept apprentices under the age of 14.115 Special arrangements for the sons of members were widespread. In Aberdeen sons paid half the normal entry fee and did not have to present a discharged indenture; instead, it was sufficient for a member’s son to produce
111 Acaa, Society of Advocates in Aberdeen, Sederunt book 1799–1819, D528/2/2, Regulations and bye-laws, 19 June 1799, regs 16, 18. 112 Sl, ws Society Sederunt book 1714–1732, fol. 135 (2 Jul. 1722). 113 Sl, ws Society Sederunt book 1750–1784, fol. 36. 114 Gul Spec. Coll, Mu14-a.11, Answers for the Dean and Faculty of Procurators in Glasgow to the Petition of John Dinning, 8 Apr. 1817, pp. 23–24. 115 Nrs, Register of the Society of Solicitors, GD330/71, fol. 17.
116 Nrs, Sheriff court of Aberdeen, diet books, SC1/2/58, fol. 196 (the 1776 regulations, reg. 10); acaa, Society of Advocates in Aberdeen, Sederunt book 1799–1819, D528/2/2, Regulations and bye-laws, 19 June 1799, reg. 21. 117 Acaa, Society of Advocates, Sederunt book 1777–1799, D528/2/1, 17 Jan. 1792. 118 Ibid., Sederunt book 1799–1819, D528/2/2, Regulations and bye-laws, 19 June 1799, reg. 22. Benefits for members’ sons-in-law were also found in guilds e.g., the Edinburgh tailors: alsp, Pitfour collection, vol. 19, no. 14. 119 Nrs, Register of the Society of Solicitors, GD330/71, fol. 19; nrs, Sheriff court of Aberdeen, diet books, SC1/2/58, fol. 196. 120 Nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/58, fols. 199–200 (1776, reg. 16). 121 Rfpg, Sederunt book 1761–96, fol. 86. 122 Ibid., fol. 143.
Examination
The major societies appointed annual committees of examiners to assess the qualification of candidates for admission. Perhaps surprisingly, in Aberdeen, until 1779, no trial of an entrant could take place unless at a meeting where “a majority of the acting Procurators” was present.126 The regulations were then amended so that a committee of five examiners was to be appointed annually, including the president and treasurer, giving any three of them “power to examine the Candidates and make report.” In Glasgow, the examination of candidates was introduced in 1721.127 Examiners were to be appointed by the court and this was done partly in order to protect the public but also to protect poor members. Admitting to practise men who lacked the skills to attract business would simply add to the calls on the Faculty’s poor fund, to the prejudice of the existing poor. The only known record of an examination before procurators, in Dumfries in 1794, suggests that the process was by no means perfunctory. Even so,
123 Nrs, Register of the Society of Solicitors, GD330/71, fol. 20. 124 acaa, Society of Advocates, Sederunt book 1777–1799, D528/2/1, 22 Jan. 1791. 125 See Finlay, “Legal education 1650–1850”, 125–127. 126 Acaa, Society of Advocates, Sederunt book 1777–1799, D528/2/1, 20 and 22 Jan 1779. This phrase in the 1776 regulations required the presence of more than half the “practising or residing” members at an examination, failing which the trial was deferred: nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/58, fol. 198 (reg. 13). 127 Report of Committee of the Faculty of Procurators on 22 Sep 1873 to consider and report as to the position of the Faculty as affected by the Law Agents (Scotland) Act 1873 (Glasgow, 1874) (henceforth, “Faculty Report 1874”), p. 5.
is confined to their Form of Process, some Heads of the Municipal Law, and the Stiles of Writs; as might be made appear by the Regulations agreed upon by this Body, of a very late Date: But this is very little to the Corpus Juris; and what Time that Study requires, in order to have even a tolerable Knowledge of it, is well known.129
Hamilton-Gordon’s pleading is pejorative. In particular, he alleged that Catanach was admitted at a time when procurators in Aberdeen “however illit erate, might have got that Favour for a very small Piece of Money, without any Examination” and that “a Book-worm is never the wiser, for being lodged in the Corpus Juris.”130 Certainly there was no comparison between entry to the Faculty of Advocates and entry to a society of writers or the ws Society. The latter, however, did require learning and appropriate preparation in the study of the municipal law, conveyancing and court procedure.131 In August 1786, the 21 year-old James Grahame contemplated what he still had to do before the end of his indenture and the amount of study still to be done even after it was complete. During the summer he had “drawn two or three papers” but had not read very much law and was running out of time to do so.132 His indenture with Lawrence Hill ws
128 Hector M’Kechnie, “An eighteenth-century Dumfries procurators’ examination,” Juridical Review 43 (1931), 337–348; nrs, GD165/box5/5/8. See also Finlay, “Legal education, 1650–1850,” 124–125. 129 Alsp, Falconer collection vol 1, Answers for Mr Charles Hamilton-Gordon Advocate to the Petition of James Catanach and others, 1 Nov 1744, p. 16. 130 Ibid., pp. 15, 28. 131 As specified, e.g., in the 1776 Aberdeen regulations (reg. 13): nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/58, fol. 198. 132 Gca, Grahame Correspondence T-MJ/337, James Grahame to Robert Grahame jun., 7 Aug. 1786.
I intend at the end of it [i.e. his apprenticeship] to go to Glasgow and remain all the autumn vacation reading law books six hours a day (but this by no means to exclude present reading). I will return here at the beginning of the session and without continuing longer with Mr Hill enter & do business for myself.
Grahame was eventually admitted to the ws Society in December 1788 and later, in 1795, entered as an advocate, before finding his vocation in the church.133 His apprenticeship seems not to have excited him. His father had written to him in 1785, in strong terms, urging him to work harder and not to fall “into ignoble slothful listless negligent drizzling drowsy desponding habits.”134 Both his father and brother, he was told, had exerted themselves when they began business as writers in Glasgow: hard work had helped them overcome difficulties and had brought rewards.135 Indeed, according to Grahame senior, “labour & exertion…will draw more respect from the good & wise than inherited patrimony & estate.”
Activities
Many documents were written by apprentices, some drafted at their own hand, many others dictated by their masters, and many were formally witnessed by them. For example, a declaration by barber (and prisoner in the Tolbooth), William Watt, in which he promised in future to behave soberly and to “not be guilty of scolding or abuseing any of my neighbours”, and agreed to accept two months in prison if he failed, was recorded in writing in Selkirk by James Riddell, apprentice to the commissary of Peebles, in 1755.136 Experienced apprentices entered into correspondence on behalf of their masters about their clients’ affairs, including correspondence with other lawyers. Those apprenticed to procurators, when sufficiently well versed in
133 History of the ws Society, 85; Finlay ed. arnp, ii, no. 2526. 134 Gca, Grahame Correpondence, T-MJ/337, Thomas Grahame to James Grahame, 18 Dec. 1785. 135 His father, Thomas, had entered the Faculty of Procurators in 1751 and his brother Robert had done so in1781: Finlay, ed. arnp, i, no. 1373; ii, no. 2219. 136 Sba, D44/1/2.
Paisley 30th August 1769 Borrowed up by me Apprentice to James Kibble writer in Paisley Process James Yates ag[ains]t Arthur Sym which I prom ise to return on demand john paul139
In the event of failure to return a process on time, letters of caption were avail able against an apprentice as much as against his master.140 A means of identifying genuine apprentices was obviously required. In 1772, the lords of session ordered that agents in the Court of Session should lodge a list of their clerks and apprentices (advocates had likewise to certify their first clerks).141 A similar rule was included in the 1776 regulations in the sheriff court of Aberdeen, along with provisions concerning entitlement to sign pro cesses.142
137 Alsp, Falconer collection, vol. 1, Answers for Mr Charles-Hamilton Gordon Advocate, to The Petition of James Catanach, and others, 1 Nov. 1744, p. 15. See the Edinburgh Solicitors at Law in 1792, Reg. 5.2: nrs, Register of the Society of Solicitors, GD330/71, fol. 21. 138 Nrs, Melville papers, GD51/5/407. 139 Nrs, Sheriff court of Paisley, minute and act books, SC58/1/16, 14 Jan. 1778. 140 Nrs, Sheriff court of Inveraray, SC54/23/6, Proposed regulations of the form of process before the sheriff court of Argyll, 1782, reg. 41. 141 Acts of Sederunt 1553–1790, 575–77; nls, Delvine papers, ms 1505, fol. 145v (19 Dec 1771). 142 Nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/58, fols. 201–2 (regs 21–23).
A procurator could sign for an absent colleague, but only upon the request of the latter’s genuine clerk or apprentice. Some court books, including Aberdeen, contain notices lodged by appren tice masters identifying to the clerk of court those persons authorised to act on their behalf. For instance:
Ab[er]d[een] 14th Jan[ua]ry 1778 Alexander Bean my Clerk & William Kennedy my apprentice are the only persons at present authorised by me to borrow up or manage processes in my name. d[avid] morice143
The relationship between an apprentice and his master involved great trust, with the apprentice bound to protect the secrets both of his master and his clients.144 Equally, loyalty required the apprentice to defend his master’s good name. John Blair, the fourteen-year old apprentice of Robert Mackenzie, sheriff clerk of Dunbartonshire, provides an interesting illustration of this in a deposi tion in 1795. Blair testified that he had heard the local town clerk, John McAulay, issue “a rhapsody of cursing and swearing” directed towards his absent master.145 At the time Blair had been walking behind McAulay, carrying a mea suring chain, as they had proceeded to examine some local roads which were in dispute. Dutifully, Blair had memorised the insults (“villain and puppy” were the worst) and was able to give a precise account of them in his master’s sub sequent action against McAulay. An apprenticeship to an agent in the College of Justice was geared towards Court of Session procedure. This long made a sojourn in Edinburgh attractive to young country apprentices, eager to gain an understanding of the forms and practice of the central court. This is reflected in a 1754 memorial written by those employed in the chamber of the clerks of session and as clerks to extrac tors. They complained of being overlooked in the new Act of Sederunt by which Court of Session agents were to be admitted. They regarded their practi cal experience as an entitlement to admission:
Because most of the Memorialists have been regularly bred apprentices to writers, some in the Country and some in Edinburgh, and afterwards have served a longer time in the public offices, whereby they have not only the greatest trust, but also opportunities of improveing in the knowledge
143 Ibid., SC1/2/59, fol. 500. 144 Finlay, “Pettyfoggers, regulation and local courts,” 56–8. 145 Nrs, Cunninghame-Graham of Ardoch papers, GD22/1/223.
of practice of business, and particularly in the forms and procedure of the Court of Session.146
The act, however, was not amended in their favour. It is noteworthy, certainly by the nineteenth century, just how common it was for country procurators to have had some training in an Edinburgh writing chamber.
Conclusion
Prior to the formation of the Faculty of Advocates, and even before the founda tion of the College of Justice in 1532, it is clear that procurators in Edinburgh were willing to act together in defence of their mutual interests.147 Societies added formality and structure to that natural instinct, but there is evidence that even before they came to be formed, in places like Dumfriesshire, the Borders, and Ross and Cromarty, local lawyers worked collectively to their own advantage when necessity required. By 1870, incorporated local societies had blossomed across the country, with fifteen incorporated under a procedure set out in the Procurators’ Act 1865 and at least seven incorporated by royal char ter before that enactment.148 The foundation of societies was a local response to the creation of a Faculty of Advocates in Edinburgh. This was likely a much more influential event than the creation of the (probably even older) ws Society. The Faculty of Advocates certainly existed by the beginning of the seventeenth century and it is not long after that that local societies began to leave a mark. They were moulded on the organisational model of the advocates in the Court of Session, although adopting relevant attributes, such as the recording and regulation of apprenticeships and the appointment of a procurator fiscal, from the ws Society and no doubt also being influenced by other local non-legal guilds and incorporations. The formation of legal societies almost certainly improved standards of training and conduct within the profession. Yet abuses inevitably arose. In 1753 the ws Society found that the apprentices of James Hay ws were being used as family servants, a practice which it thought disgraceful and dishonourable and
146 Nls, Saltoun papers, ms 17537, fol. 135. 147 See generally, Finlay, Men of Law, esp. Chapter Four. 148 Anon, “Notes on the Judicature commission and its work,” 16–17. The author mistakenly did not include the Society of Solicitors at Law in the list of societies incorporated by royal charter.
149 Sl, ws Society Sederunt book 1750–1784, fol. 29. 150 Ibid., fol. 37. 151 Alsp, Arniston collection, vol 90, no. 2, The Humble Petition of Robert Logan, 10 Aug. 1767. 152 Gul, Spec. Coll., Mu14-a.11, Answers for the Dean and Faculty of Procurators in Glasgow to the Petition of John Dinning, 8 Apr. 1817, p. 18. 153 Alsp, Elchies collection, vol. 15, no. 9, Bill of Suspension, The Messengers of Edinburgh, against Robert Drummond, n.d. [1744], p. 2; Ibid., Replies for the Society of Messengers, in the Shire of Edinburgh, To the Answers for Robert Drummond, 4 Jul. 1744, p. 1. 154 Ibid., Memorial for Robert Drummond Writer in Edinburgh, 10 Jul. 1744, p. 2.
These are the Reasons which move the Memorialist, and which move his Brethren, to be of Opinion that they ought not to be compelled to bear Testimony against their Clients.1
Procurators, in particular, had an interest in protecting their livelihood by restricting rights of audience in the court in which they worked. In turn, as a vital cog in the public administration of justice, they could directly apply pres- sure on judges, especially where they could present measures in their own interests as also acting in the interest of public protection. If a judge was per- forming poorly or acting with partiality, it was the procurators who often suf- fered but even more so did their clients. Gaining admission to practise in the public office of procurator, therefore, brought with it a responsibility to the public to ensure the correct and efficient administration of the law. The nar- rowness of the profession often inspired allegations of monopolism, nepotism, and self-interest; but lawyers, and their clients, could as easily be the victims of such forces and sometimes legal societies, or simply members of a local prac- tising bar, had to show solidarity by acting together in a common cause. Before discussing external aspects of procurator solidarity, it is worth outlin- ing some of the common features of the internal organisation of legal societ- ies. Where they existed, societies had clear hierarchies reflecting the seniority which experience was regarded as bringing to members of the profession.
Organisation
The identification of key office-bearers, particularly deans, presidents, clerks and treasurers, provides useful clues in revealing some of the most prominent or influential local legal figures across the country. Deans did not have to be practising lawyers; they might be town or court clerks. The Fraternity of Writers in Stirling, even before 1700, numbered amongst its deans James Norrie, town clerk of Stirling, John Wordie, the local commissary clerk, and
1 alsp, Falconer collection, vol. 1, no. 42, Memorial for John Mackenzie, writer to the Signet, 18 Dec. 1744, p. 2. On the question of lawyers giving evidence, see Finlay, “Ethics, etiquette and the early modern Scots advocate,” 171–2.
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Charles Bennet, the sheriff depute. Some prominent Edinburgh lawyers with local connections, including Alexander Hamilton ws and the advocates, James Graham of Airth (near Falkirk) and James Graham of Buchlyvie (west of Stirling), also joined the Fraternity.2 Graham of Airth even donated books to their nascent library.3 Unusually, the Stirling lawyers accepted into their ranks a few merchants, booksellers and others, presumably because of their poten- tial influence and usefulness. In Glasgow, the Faculty of Procurators also showed a tactical awareness in inviting particular individuals, particularly local judges, to join their ranks. In 1761, for example, the members recommended to their dean, John Wardrop, and the commissary depute, William Weir, that they invite the sheriff depute, William Crosse, to join the Faculty. Considering the courtroom in the Tolbooth to be “cold, dark and inconvenient”, they wanted Crosse to assist them in apply- ing to the magistrates for another courthouse, situated more conveniently near the centre of town.4 Such influence could be beneficial to societies in other ways. In Linlithgow, the Faculty of Writers received a tenth part of the sentence money in the sher- iff court, which had been “mortified and gifted for the use of this faculty” by the sheriff depute.5 The same was true elsewhere. In Glasgow from 1668 regular payments were required to be made in the commissary courts every session, with the commissary of Glasgow to pay twice as much as the commissary of Hamilton and Campsie and the procurators each to pay a more modest sum.6 This may not have been the earliest such regulation and it was revived in 1697 with the addition that each court day every procurator should pay six pennies, and the commissaries and clerks two shillings, into the Faculty’s poor box.7 It is clear in treasurers’ accounts that, aside from admission money and booking money, considerable funds were raised from such boxes kept in the commis- sary, burgh and regality courts in Glasgow.8
2 sca, Fraternity of Writers in Stirling, minute book, PD145/1, 25 May 1721. 3 Ibid., 29 May 1723. On the tradition of lawyers donating books to the Advocates Libray, see Maureen Townley, The Best and Fynest Lawers and Other Raire Books (Edinburgh: Edinburgh Bibliographical Society in Association with the National Library of Scotland), 1990, 15–16. 4 rfpg, Sederunt book 1761–1796, fols. 4–5. James Cunison, sheriff clerk of Lanark, became a member in 1775: ibid., fol. 61. See also Muirhead, ed. The Old Minute Book, 28. 5 nrs, Faculty of West Lothian writers, minute book, SC41/91/9, fol. 41. 6 Muirhead, ed. The Old Minute Book, 40. 7 See generally, ibid., 40–42, 93, 100–101. The “Faculty Report 1874”, p. 12, offers a less reliable interpretation. 8 E.g. rfpg, Sederunt book 1688–1759, fols. 115–118. The figures clearly demonstrate the local dominance of the commissary court.
A similar level of judicial co-operation can be found in Stirling. In 1691 the Fraternity of Writers there had demonstrated its stranglehold on practice in the town, and also in Falkirk, when it ordered that:
from hence forth all pro[curator]rs heirefter that shall compeer ayther [either] pro or contra in any action before commissar, sheriff or toun courtis of Sterling or regalitie court of Falkirk, shall satisfie and pay the summes following viz ane shilling scots for each clame bellow twentie pund monie fors[ai]d And tuo shilling for each soume above the same tuentie pund or the same.9
The commissary and town clerk of Stirling, and the clerk to the regality of Falkirk, were to pay two shillings out of the act money each court day. All these sums were to contribute to meeting the needs of indigent persons dependent on the Fraternity. As members of that society, the commissary and town clerk of Stirling were happy to comply. In Paisley, so it was alleged, the formation of a body cor- porate, the Society of Writers in Paisley, had the blessing of the sheriff substitute though it took place without the knowledge of the sheriff depute.10 To raise funds for their society, they arranged ‘a tax upon some part of the judicial procedure’ whereby every party who deponed in court had to pay a penny into their box.
Meetings
The minutes of smaller faculties, such as that in West Lothian, are much less detailed in nature than those of some of the greater bodies of lawyers.11 In West Lothian, the focus was very much on noting and fining members absent from meetings (or recording their excuses); the appointment of the dean, clerk and treasurer; and the auditing and approval of the treasurer’s annual accounts. The admission of new members, and their subscription of the “fundamental Laws” of the Faculty is noted; as is the appointment of members to act for the poor; but the rest of the business is ad hoc and generally financial, such as recording the lending of the Faculty’s funds at interest on security or external requests for charity.
9 sca, Fraternity of Writers in Stirling, minute book, PD145/1, 1 Aug. 1691. 10 alsp, Arniston collection, vol. 150, no. 13, Duplies for John Snodgrass, sheriff-clerk of Renfrew, and Robert Walkinshaw, his depute To the Replies of James Kibble, and others, 29 Jan. 1783, p. 18. The date of formation is unknown, but it was probably in the 1770s. 11 nrs, Faculty of West Lothian writers, minute book, SC41/91/9.
In contrast, the Faculty of Procurators in Glasgow and the Society of Advocates in Aberdeen have detailed records.12 In Glasgow, however, sede- runts of meetings are not given and it is therefore difficult to know how many members actually participated in business. Even when the dean, Alexander Witherspoon, died in 1779 and there was a meeting of the commissary depute, the commissary substitute and “a great number of the procurators and mem- bers of Faculty”, to elect John Buchanan as his replacement, the names of those members attending and voting were not recorded.13 In Aberdeen the sederunts were typically quite small. The practice of “fining the absents”, was not a fea- ture by the end of the eighteenth century (nor was it in Glasgow), although the regulations of the Aberdeen society clearly required at least twenty-four hours notice to be given of any meeting.14 Even so, less than twenty members often attended general meetings, although attendance varied according to the importance of the business. Twenty-three members attended the election of office bearers in 1788, for example.15 Only a dozen were present on 10 November 1792 to receive a petition for entry from John Gordon, the sheriff clerk depute of Aberdeenshire.16 In the same year, the Society of Solicitors in Edinburgh specified that nine members was a quorum for any meetings which it held.17 As meetings tended to be of a manageable size, they were often held in the houses of members. In Aberdeen, meetings were held in the hall of the record office and in the laigh Tolbooth, but many took place in the house of a local vintner, Joseph Mitchell (presumably, this was a public house). In Stirling, the Fraternity did not restrict itself, or its membership, to the town itself and its meetings reflect this. The May 1730 general meeting, for instance, was arranged to take place in Falkirk in the house of William Boog.18 Robert Stewart played
12 The Edinburgh Society of Solicitors “register book” survives, containing mainly the com- missions of new members, in Edinburgh Central Library. A copy of the “minute book” is in the National Archives of Scotland. 13 rfpg, Sederunt book 1761–1796, fol. 78 (17 May 1779). 14 This varied. The Edinburgh Society of Solicitors in 1792 laid down rules requiring at least 24 hours’ notice of a meeting and set a fine of 2s 6d for those absent, to be paid to the poor: nrs, Register of the Society of Solicitors, GD330/71, fol. 15. In 1708, the West Lothian writers provided written notice “some days” ahead of their meeting, to make absence less excusable: nrs, Faculty of West Lothian Writers, minute book, SC41/91/1, fol. 14. The ws Society continued to fine absentees from general meetings, e.g. in 1797: sl, ws Society Sederunt book 1785–1805, fol. 308. 15 25 Nov. 1788. 16 acaa, Society of Advocates, Sederunt books 1777–1799, D528/2/1, 10 Nov. 1792. 17 nrs, Register of the Society of Solicitors, GD330/71, fol. 16. 18 sca, Fraternity of Writers in Stirling, minute book, PD145/1, 29 May 1729.
19 Ibid., 8 Apr. 1773, 26 Jun. 1783. 20 nrs, Faculty of West Lothian Writers, minute book, SC41/91/1, fols. 8, 53. 21 E.g. rfpg, Sederunt book 1761–1796, fols. 191, 192, 215. 22 nrs, Court of Session, Bill Chamber, CS271/71484, “Minute of the Fraternity of Procurators in Ayr, 1710.” 23 nrs, Register of the Society of Solicitors, GD330/71, Register of the Solicitors at Law, fols. 14–15. 24 Charter and Regulations of the Faculty of Procurators in Paisley, Incorporated 24th June 1803 (Paisley: Alexander Gardner, 1836), 15–16. 25 E.g. sl, ws Society, untitled volume of regulations, reg. dated 19 Feb. 1722.
so there shall be no more wine or other strong Liquors drunk then as it comes to a Choppin of Claret wine for every member present att most and that after the said Reckning is cleared all the members are to Disperse for preventing of more occasion of Drinking & that the Custom of the Deans pint of wine be hereafter wholly abolished.26
The following year, when not even a quorum appeared for the annual dinner, those present decided to pay twenty pennies each for their proportion of the meal and authorised the treasurer to pay the remaining £10 Scots.27
Office-Bearers
Edinburgh’s Society of Solicitors at Law, every March, elected a preses (chair- man), treasurer, fiscal and clerk to hold office for a year and also appointed five members as a “committee of advice” to be consulted on an occasional basis in regard to the management of funds.28 This sensible measure calls to mind the role of the dean’s council in the Faculty of Advocates, although the WS Society had its equivalent in the commissioners who were appointed to assist the deputy keeper of the signet.29 In Stirling the Fraternity of Writers, by at least 1699, were more explicit in having a dean (often described as “dean of Facultie”) and a dean’s council. In 1715, the Fraternity also elected a box-master (treasurer), dempster, officer, and even chose James Johnston as “physician of the fraternity.”30 As we have seen, local judges were often invited to join as members of soci- eties in an honorary capacity. The relationship with local judges was perhaps most explicit in Glasgow. In 1761 the Faculty of Procurators specified in their regulations that a meeting may be called by the commissary of Glasgow or his substitute, the commissary of Hamilton and Campsie, or the dean of Faculty, any of whom had power to preside.31 The Glasgow Faculty, it is worth noting, also had a dean’s council.32
26 nrs, Faculty of Writers, minute book, SC41/91/1, fol. 45. A ‘choppin’ was a measure equal to a Scottish half pint. 27 Ibid., fol. 48. The lack of a quorum was not unusual, e.g. ibid., fols. 60, 67, 69, 78. 28 nrs, Register of the Society of Solicitors, GD330/71, fols. 14–15. 29 See Pinkerton, ed. Minute Book of the Faculty of Advocates 1661–1712, xiii. 30 sca, Fraternity of Writers in Stirling, minute book, PD145/1, 12 May 1715. 31 rfpg, Sederunt book 1761–1796, fol. 1. 32 E.g. Sederunt book 1796–1832, fol. 554.
Committees
Aside from the regular appointment of committees of examiners, societies appointed committees of their members to oversee a range of business. Some of this was regular in nature, such as the management of the society’s funds or, to give another type of example, the committee for managing their library which the Society of Advocates in Aberdeen appointed in 1788.33 Many com- mittees, however, were ad hoc, being set up to investigate particular matters, or to carry forward some new proposal, and report. For example, the Edinburgh Society of Solicitors, having discovered from their London agent the method for applying for a royal charter, remitted to a three-man committee the task of drawing up a petition to do so in 1780.34 Just as committees of the Faculty of Advocates or WS Society were invited to advise the lords of session on the framing of certain Acts of Sederunt, so local societies engaged in a similar process of consultation. The Stirling Fraternity in 1774, considering that the sheriff court regulations “by experience might admit of some beneficial alterations, and that some things have been often talked of at former meetings to be suggested”, appointed three members to prepare a scheme of improvements which might be put forward to the sheriff.35 In 1777 the sheriff-depute in Aberdeen, Alexander Elphinstone, decided to change the table of fees only “after duly deliberating upon the extent of Fees proper to be charged by Procurators & after having advised with the Society of Procurators.”36 In Perth, the sheriff-depute in 1787 himself appointed a com- mittee of the procurators in his court to make suggestions to improve the regu- lations; unsurprisingly, they invented rules in their own interests.37 The Glasgow Faculty appointed a committee in 1786 to write a memorial to the commissary requesting that he reduce the frequency of sittings of his court to one per week, because it would be “of more advantage to the lieges, and more convenient for themselves.”38 The ws Society appointed ad hoc committees in disciplinary cases to examine witnesses when complaints were made.39 Similar instances occur elsewhere.
33 acaa, Society of Advocates, Sederunt books 1777–1799, D528/2/1, 1 Nov. 1788. 34 ecl, Register of the Society of Procurators of Edinburgh, fol. 15. 35 sca, Fraternity of Writers, minute book, PD145/1, 30 Aug. 1774. 36 nrs, SC1/2/67, fol. 310. 37 nrs, Court of Session, Bill Chamber, CS271/32892, “Answers for James Paton sheriff clerk of the County of Perth”, n.d. [1789], p. 11. 38 rfpg, Sederunt book 1761–1796, fol. 157. 39 E.g. the case of John Cheisley in 1700: sl, ws Society Sederunt book 1691–1701, fol. 514.
The Glasgow Faculty of Procurators, for example, appointed a committee in 1797 to investigate the conduct of Benjamin Barton who had been accused of mismanaging property belonging to the orphaned children of the late minister at Eaglesham, Thomas Clark. Allegations of Barton’s bad faith justified the investigation, not only because of the suggestion of prejudice to the orphans but also to give Barton the chance to clear his name publicly of conduct “unbe- coming a member of Faculty and inconsistent with his bounden duty.”40 It is likely that local societies copied each other. Certainly, they would be aware of notable developments through the normal professional and personal correspondence between lawyers that crossed the country. They would also, of course, follow any legal developments from Edinburgh or London which affected the interests of lawyers generally. An interesting example is the exemp- tion claimed by lawyers from quartering soldiers or paying billet money in lieu of this.41 Although the Faculty of Procurators claimed such exemption, the bil- let master in Glasgow, in error, billeted soldiers on two of its members in 1786. This was against the instructions of the magistrates, who were negotiating with the Faculty its claim to exemption in the hope of an amicable settlement, hav- ing asked the procurators to prove their case by laying evidence before “the touns men of business.”42 The Faculty lodged a bill of suspension in the Court of Session, and appointed a committee to draft a memorial setting out their legal case in which they prevailed in 1789. Hearing of the outcome, the Society of Advocates in Aberdeen, regarding “the foundation of that decision” as being equally relevant to them, immediately resolved to claim the same privilege.43
Internal Discipline
The cohesion of professional legal societies depended in part upon their effec- tive governance and a willingness to develop and enforce their own regulations. What authority societies had to enforce regulations against their members, through their fiscals, or by other means, is an interesting question. A new
40 rfpg, Sederunt book 1796–1832, fol. 53. Barton, the commissary clerk of Glasgow since 1775, is described by Buchanan as an extravagant dresser who “who cursed and swore most splendidly”, Reminiscences, 3, 13–14. On his appointment as commissary clerk, see nrs, Privy seal records, PS3/10, fol. 334. 41 This was one of the privileges enjoyed by members of the College of Justice: Finlay, Community of the College of Justice, 5. 42 rfpg, Sederunt book 1796–1832, fols. 153–154. 43 acaa, Society of Advocates, Sederunt books 1777–1799, D528/2/1, 19 Feb. 1789.
44 nrs, Faculty of Writers, minute book, SC41/91/1, fol. 14. 45 For an example, see nrs, RH15/55/51/21. 46 rfpg, Sederunt book 1761–1796, fol. 41. 47 sca, Fraternity of Writers, minute book, PD145/1, 8 Apr. 1673. 48 sca, Fraternity of Writers in Stirling, minute book, PD145/1, 23 Oct. 1672. The phrase “cala- marium man” (man of the pen), refers to the traditional presentation of a pen and penner (pen–case) to a new notary: see Finlay, “History of the notary in Scotland,” 399.
As a result of this draconian ruling, Dow subscribed the former acts (or regula- tions) of the Fraternity in token of his adherence, and “submitted himself to the jurisdiction of the dean & his brethren.” There is no room to discuss at length all the regulations, however it is worth mentioning a few examples relevant to practice to give a sense of the preoc- cupations of members. Some concerned rules of etiquette. The Faculty of Procurators in Glasgow in 1761, in order to preserve “a suitable distinction between the members of faculty and their servants”, provided that no one could come within the inner bar of the courts, or use seats allotted for procura- tors, unless they were procurators. Apprentices and clerks were required to stand immediately behind their masters.49 Most forms of unethical practice, if not penalised, risked affecting discipline. This was particularly true of attempts to compete unfairly, through stealing clients or under-charging to attract business. In 1681, the Stirling writers enacted that no procurator could accept as a client any litigant formerly represented by another procurator, until the “former procurator be cleared & payd.”50 In 1798, the fiscal in the Society of Solicitors in Edinburgh raised a complaint against a clerk and apprentice of William Sprott, who were alleged to have carried on processes for their own gain in the inferior court by using their master’s name. This, if true, was a clear violation of the regulations. When an inquiry was ordered, Sprott reacted angrily to having his affairs investigated and alleged the complaint was unfounded. He claimed that all the business in his office went through his accounts.51 When the investigating committee demanded to see his books, Sprott refused:
I hold myself guardian of my own honour and sole judge of the opera- tions of my clerks and should any of them presume to act contrary to my interest, when entertained at my expense, I shall regulate my conduct towards them accordingly, without the interposition of the Society of Solicitors or a committee of their number.52
This is an interesting expression of practitioner independence which, wisely, Sprott later recanted and for which he apologised. If the allegation against him were true, then his professional colleagues clearly had a financial interest in preventing such illegitimate practices.
49 sl, ws Society Sederunt book 1761–1796, fol. 2. 50 sca, Fraternity of Writers in Stirling, minute book, PD145/1, 5 Jan. 1681, ratified 29 May 1688. 51 nrs, Register of the Society of Solicitors, GD330/71, fols. 252–253. 52 Ibid., fol. 255.
Price Competition
Deliberate under-charging for services regulated by a table of fees was a prime disciplinary issue, although the best evidence of it occurs in the WS Society. There seems to be little evidence of procurators trying to undercut their com- petitors in the inferior courts. Prescribed fees in the Court of Session were higher than in the local courts and the WS Society regarded price competition as unethical. Its regulations stated that no member was to “forme wryte or sub- scryve any letters summonds or presepts passing the signets to thir clients agents or any other persones for mean and naughtie prices.”53 It was a “con- tempt of the calling” to agree to work at a rate “beneath the ordinary prices now in use.” The prescribed rate either had to be charged or the service pro- vided for free, although this rule was repeatedly ignored in practice. In July 1704, for example, complaints were raised against William Paton ws and John Knox ws for subscribing letters “under the pryce allowed by the regulations” as revised in 1699; the Society’s fiscal was to present both with libels to be answered.54 In Paton’s case, this warning was clearly insufficient. In 1711 he eventually reached an agreement with the Society whereby, in return for an annual pension of 200 merks, he gave a written undertaking that he would never again sign letters to be passed under the signet.55 In 1705 the fiscal made a separate complaint against two other members who had indulged in the same practice of charging less than prescribed for signing letters and other papers which passed the signet.56 One of them, Alexander Fyffe, admitted the charge and was suspended from practice for three months. A century later, a complaint was made in 1811 against William Macpherson ws for the same activity on a grand scale.57 The fiscal of the WS Society charged him with subscribing signet letters, particularly letters of horning, captions and summonses, for less than the legal fees and for signing letters written by fifteen or sixteen men who were not his clerks or apprentices. The fiscal cited precedents, including two from 1596 and 1671, where writers had been pun- ished for the same offences. Macpherson, along with others, had also been charged with a similar complaint in 1809 and, despite protesting that he was being victimised by the fiscal, he eventually admitted guilt. In seeking to suspend
53 nrs, Regulations of the ws Society, RH15/55/51/21. 54 sl, ws Society Sederunt book 1701–1714, fol. 92. 55 Ibid., fol. 327. See also Finlay, Community of the College of Justice, 162. 56 sl, ws Society Sederunt book 1701–1714, fols. 194–5. 57 Ibid., ws Society Sederunt book 1806–1819, fols. 206–7, 213, 217–9; nrs, Court of Session, Bill Chamber, CS271/58625.
Protectionism
The more serious side to societies emerged in times of crisis when, if their association was to have any meaning, members had to act collectively to defend their combined interests. This was nowhere more evident than when those interests were under threat from the judges before whom the members appeared. Societies were generally highly respectful of judicial authority but,
58 nrs, Register of the Society of Solicitors, GD330/71, fols., 240–241.
I was the innocent cause of the exclusion of my Brethren procurators who shewed a greater attachment to me than to their private intrest, and repeatedly have rejected singly all the proffers & concessions made to have them break union and return.63
59 nrs, Transcripts from Kew, RH2/4/368 fol. 194v. 60 nrs, Montrose correspondence, GD220/5/1672/3. 61 nls, Saltoun papers, ms 17357 fol. 145r; Finlay, ed. arnp, i, no. 924. 62 nls, Saltoun papers, ms 17347, fol. 145v. 63 Ibid., ms 16701, fol. 95.
In seeking Milton’s help, Mackillop asserted that it was not so much through regard for him that they kept away, as concern for their clients and the fact that Bryce, and Walker over whom he was entirely ascendant, had made themselves “highly disagreeable” to most of the townsmen, including the council and the magistrates, by their treatment of litigants. While Bryce’s judgments could be appealed to Walker (for a fee), it was alleged that Bryce manipulated the min- utes and the interrogatories put to witnesses, and also that he personally laid the causes before Walker and drafted his sentences.64 To make matters worse, it was said that whenever Bryce could not preside, his relative Moir did so. Milton was particularly disturbed to hear that a mes- senger might have the status of even a substitute judge, and he wrote to Walker in February 1757 setting out his concerns.65 Walker put the problems in the court down to a disagreement between Bryce and the sheriff clerk, John MacGibbon, who was Mackillop’s choice as replacement for Bryce. Almost in a challenge to Milton, Walker informed him that the duke of Montrose, at the wish of Lord Cathcart, had recommended a messenger to replace his other substitute, in Clackmannanshire, who was presently ill. Milton backed down. His advice to Walker was to inform Montrose of the man’s status and, if Montrose still wanted him, to make the appointment: Montrose’s patronage thus secured Walker room for manoeuvre in his own court. Walker resigned the office in 1759 and sold it to Robert Bruce of Kennet in return for a lifetime annuity of £90 sterling.66 Bruce was regarded as a good sheriff, although he clearly saw the office as a sound investment, just as he later viewed the chair in Public Law and Nature and Nations which he obtained in Edinburgh also in 1759.67 This episode demonstrates the readiness of procurators, in extreme cir- cumstances, to resort to politicking when it seemed that the patronage sys- tem had resulted in harm to the interests of the public (and, of course, themselves). The public interest was again engaged when a disagreement over a substitute occurred in 1815 between the Faculty of Procurators in
64 Ibid., fols. 145r–146v. 65 nls, Saltoun papers, ms 16701, fol. 97. 66 Ibid., ms 17537 fol. 169v; nrs, Register of the Great Seal, C3/19, no. 47. 67 Bruce sold the chair in 1764, resigning in favour of James Balfour: ibid., fol. 160v. The pur- chase of chairs was not unusual. Allan Maconochie paid £1500 for the same chair in Public Law and the Law of Nature and Nations at the University of Edinburgh in 1779 and sold it, for the same sum, in 1796 to the advocate Robert Hamilton, when he was elevated to the bench: nrs, Miscellaneous Letters to John Bruce, GD152/209/3/19. For background, see Roger L. Emerson, Academic Patronage in the Scottish Enlightenment (Edinburgh: Edinburgh University Press, 2008), 262.
Glasgow and the sheriff-depute of Lanarkshire, Robert Hamilton. The dis- pute centred on the competence of the sheriff’s brother, Daniel Hamilton ws. Prior to being appointed as substitute in the Lower Ward of Lanarkshire by his younger brother in 1808, Daniel had resigned as a writer to the signet in order to take up a captaincy in the Lanarkshire militia. The Faculty, in its pleadings, sought to justify its action to remove him as being one of last resort, brought in the interest of their clients rather than the private inter- est of its members. They presented twenty-seven cases as examples of Hamilton’s incompetence. The injury to the public was also an injury to them, because
when the most strange, contradictory and irregular judgments were pro- nounced, parties did not fail to attribute it to some mismanagement, incapacity, or inattention on their part, in conducting the causes.68
After seven years, with no expectation of any improvement in the substitute’s performance, the dean and a committee in the name of the Faculty had brought their action. Ultimately, however, the Court of Session ruled that it was incompetent at the instance of the petitioners. This fascinating case, brought as a summary action, raises several points. The sheriff did not deny that the substitute had made errors but he did deny that he was not competent for the post. The correspondence between James Hill, dean of the Faculty of Procurators, and Sheriff Hamilton, demonstrated that the Faculty, in setting up a committee to deal with the complaint, had attempted to keep the matter confidential.69 The correspondence runs from December 1814 to June 1815 and includes towards the end some discussion of the possibility of referring the complaint to the crown lawyers for their inde- pendent consideration, although no such reference was made.70 According to the sheriff, there were fewer deviations from the regulations by the smaller number of practitioners in the courts held at Lanark and Hamilton than there were in the much bigger court in Glasgow. Regulations had been laid down by the sheriff in 1802 and again in 1814, the latter revision being nec- essary, in part, because the procurators in Glasgow committed much of their business into the hands of their apprentices and clerks whose irregularities,
68 nrs, CS230-G-11-3, The Petition and Complaint of James Hill, Esq. Dean, John Lang [and others], a Committee appointed by the Faculty of Procurators in Glasgow; in name and behalf of the said Faculty, 6 July 1815, p. 3. 69 Ibid., Appendix to the Petition and Complaint, 11 Jul. 1815, p. 7. 70 Ibid., p. 16.
71 Ibid., Answers for Robert Hamilton, 30 Aug. 1815, p. 5. 72 Ibid., p. 9. 73 Ibid., p. 10. 74 Answers for Daniel Hamilton, 7 Sept. 1815, p. 5. 75 [Buchanan], Reminiscences, 15. He described Daniel Hamilton as speaking “as if a small bit had been lopped off his tongue.” 76 alsp, Arniston collection, vol. 150, no. 13, Replies for James Kibble and others To the Answers for John Snodgrass, Sheriff-clerk of Renfrew, and Robert Walkinshaw, his depute, 1 Jan. 1783, p. 14.
“clerk, procurator, and sheriff-substitute” until the “murmurings of the people” had grown so loud that the sheriff had removed him as substitute.77 Even so, it was alleged that from Greenock, having left his depute to act as sheriff clerk in Paisley, he raised and managed actions before the sheriff-court. He employed others, particularly his own nephew, as procurators to appear for his clients. His depute, also using others to screen his own management of cases, was engaged in the same practice and this was notorious throughout Renfrewshire.
Mr Snodgrass has carried on the business of a procurator in this court for six years past to a very considerable extent; and there is reason to believe it has been the more extensive, from an idea which had been industri- ously sent over the county, that the clerk can do more for his clients than any other procurator.78
The procurators, having demanded a meeting with the clerk, put their griev- ances to him before proceeding to bring their complaint. The outcome was that Snodgrass and his deputes were prohibited, while they continued in office, from acting as procurators in any action before Renfrew sheriff court.79 The lords also found it “illegal and unwarrantable” for a sheriff clerk or his deputes to act as procurators in causes before the sheriff-court and prohibited them from doing so; the same finding was made in respect of their claiming higher fees than those fixed by the 1748 Act of Sederunt. Snodgrass, however, remained in office and continued to dispute his guilt, although the practical result was the stronger enforcement across Scotland of the rule that clerks could not act as procurators in their own court.80
The “favoured circle”
Societies of lawyers tended to be based in one place although, as we have seen, they were not necessarily attached to a single court. When Robert Rae was admitted a procurator in the commissary court in Kirkcudbright in 1758, no one objected to him even though he was already a procurator in the stewart
77 Ibid., p. 16. 78 Ibid., The Petition and complaint of James Kibble and others, 20 Nov. 1782, p. 6. 79 alsp, Miscellaneous collection, ser. 7, vol. 5 (1782–1785), The Petition of John Snodgrass sheriff-clerk of Renfrewshire, 24 Nov. 1784, p. 1. 80 See above, page 26.
the Head-burgh of every Shire is the communis patria of the Inhabitants within the Shire, where each Person is supposed to have a Procurator or Doer to take Care of his legal Interests, in the same Manner as Edinburgh is the communis patria for the whole Kingdom. All Courts therefore ought to be held there, unless where is special Statute or inveterate Custom to the contrary.83
Yet Greenlaw was a “small village”, enjoying little trade and lacking suitable accommodation for those who came to court. The hereditary sheriff, the earl of
81 nrs, Commissary court of Kirkcudbright, diet book, CC13/1/1, fol. 19. 82 nrs, Memorial for the Society of Procurators before the Sheriff Court of Ayrshire against Alexander Jamie, and Others, 25 June 1813, SC271/71484, p. 3. 83 alsp, Craigie collection, vol. 13, no. 39, Memorial for Sir Robert Pringle of Stichel and others, Justices of the Peace of the Shire of Berwick, 3 Jul. 1740, p. 2 (per Henry Home). On this case see J. Finlay, “Jurisdictional complexity in post-Union Scotland,” in S.P. Donlan and D. Heirbaut, ed. The Laws’ Many Bodies (Berlin: Duncker und Humblot, 2015) 223–248.
Home, was so keen on the move to Duns that in 1736 he asked Lord Milton’s advice on how best to secure it, no doubt also enlisting Henry Home’s services for the cause.84 It was not only sheriffs who exerted control over local procurators. In Dunfermline, the procurator James Alexander went to the Court of Session in a bid to suspend an act of the bailie court:
Discharging procurators to take up or borrow processes before said court who did not live within the jurisdiction ay & till they made it appear that they had an office within the Burgh & enacted themselves to obey the orders of court as procurators ought to do &c.85
The requirement to have an office within the burgh was in tune with the long- standing recognition that disputes between burgesses should be determined before local magistrates in the burgh court. In 1744, Perth town council attempted to uphold this principle when the merchant James Grier cited the wife of a Perth surgeon to appear before the commissary of St Andrews.86 It naturally fell to the Perth procurator fiscal to object to the matter being taken outside the burgh and he did so citing an act of the council from 1568. This act was intended at the time to counter the “obstinacy” of burgesses who, in cit- ing townsmen to distant courts, did so “not sa meikle [much] for Tryall of the Cause, as for Expences.”87 The prospect of time and money being spent attending a distant court was an incentive for a busy merchant to settle, rather than defend an action or risk outlawry by not appearing at all. Access to jus- tice meant having courts near at hand, at least so far as burgh courts were concerned. The “favoured circle” is a phrase used by the procurators of Kilmarnock in 1799 in a complaint against a regulation introduced by the sheriff depute of Ayr impos- ing a geographical limit on the residence of procurators in his court.88 Except for those already admitted to his court, practitioners in the sheriff court were in future required to have their ordinary residence within a three-mile radius of the
84 nls, Saltoun papers, ms 16556, fol. 216. Henry was a distant relation of the earls of Home: William C. Lehmann, Henry Home, Lord James, and the Scottish Enlightenment (The Hague: Martinus Nijhof, 1971), 5. 85 nrs, Dunfermline tcm, B20/13/11, 19 Dec. 1772. 86 alsp, Hamilton-Gordon, 1st collection, vol. 25, no. 51, The Petition of Patrick Crie, late Provost of Perth, and Ors, 22 Feb. 1744. 87 Ibid., p. 2. 88 nrs, Memorial for the Society of Procurators before the Sheriff Court of Ayrshire against Alexander Jamie, and Others, 25 June 1813, SC271/71484.
89 The three-mile limit was chosen because one of the procurators lived at his farm three miles outside Ayr. The rest lived in the town itself: ibid., Memorial for hm Sheriff-depute of the County of Ayr, 28 June 1813, p. 15. 90 Ibid., “Petition of Alexander Jamie and ors,” 6 Jul. 1813, fol. 20. 91 eca, crb, minute book, 1790–1801, SL30/1/1/15, Copy report by the special committee rela- tive to the unfree trade, Jul. 1800. 92 nrs, Court of Session, Bill Chamber, CS271/32892, John Davidson, writer in Auchterarder and Ors, Suspenders v James Paton sheriff clerk of Perth, 1789–1790. 93 nrs, Accompt, Mr Samuel Shaw to Mr John Finlayson, RH15/134, fol. 94 nrs, Court of Session, Bill Chamber, CS271/32892, Answers for James Paton, sheriff clerk of the County of Perth, n.d., fol. 9.
From the perspective of lawyers who resided and practised some way from the county town, the regulation in Perth sheriff court was discriminatory and unfair. It represented an attempt by the lawyers in the county town “to appro- priate to themselves the whole business of the Court.”95 The country procura- tors saw themselves as “peace Makers distributed at proper distances from the County town”, forming a vital cog in the wheels of justice because their local presence might prevent a dispute escalating to litigation.96 In Ayr, the letter- book of the writer Alexander Murdoch makes clear how often he engaged with writers in Kilmarnock, such as James Rodger, John Barr, James Wilson and James Baird, during the period 1800–1802 and the circumstances of Perthshire were no different.97 The sheriff court, it was pointed out, was not limited to the head burgh but could lawfully be held anywhere within the bounds of the sher- iffdom; therefore, the Perth regulation was argued to be unconstitutional.98 The absurdity was pointed out that if the sheriff chose to hold his court in Dunkeld then, under the regulation, the local procurator and one of the sus- penders John Fisher, could not appear before it “while the Procurators of Perth would come from fifteen miles distance to carry on the Business and return immediately.”99 The reasons for requiring an office in the town where the court was situated, manned at least by an apprentice or clerk, were strong in terms of limiting delays and the loss of documents and making individuals readily answerable to the judge. It was asserted that in Perthshire, there were not two country practi- tioners in the same outlying area. Had there been, and both parties had the opportunity to employ local country practitioners, then they would be in an equal position. But if one employed a country practitioner, and the other had to employ a procurator in the county town, then the former would enjoy an unfair advantage and the parties would not be equal under the law.100 In this regard, the sheriff clerk harked back to the time, before the regulation, when
the Country procurators enjoyed this peculiar advantage over their breth- ren in Town, that while the latter might at any time be obliged by means of a Caption immediately to return a process, and therefore took care to
95 nrs, CS272/32892, Replies for John Davidson writer in Ochterarder [sic], Charles May writer in Coupar [sic] Angus, and Ors, Suspenders, to the Answers for James Paton, 29 Jan. 1790, fol. 2. 96 Ibid., Answers for James Paton, fol. 12. 97 nrs, Alexander Murdoch, writer in Ayr, business ledgers, GD1/471/1. 98 20 Geo. ii, cap. 43, The Abolition of Heritable Jurisdictions (Scotland) Act 1747, s. 29. 99 Replies for John Davidson, fols. 4–5. 100 nrs, Court of Session, Bill Chamber, CS271/32892, Answers for James Paton, fols. 24–25.
keep it in their own custody, the former were in general exempted alto- gether from this obligation.101
What is particularly interesting about the argument of the suspenders in this case is that they referred to other courts, in particular the bailie court in Edinburgh. It was well-known there that some practitioners did not live within the jurisdiction of the magistrates and so routinely carried processes beyond the limits of where letters of caption could reach them.102 In the Court of Session, every agent or his clerk could borrow processes and take them out of the town, while processes from remote sheriffdoms were sent to Edinburgh for advice of counsel with no objection.103 Although the arguments were bal- anced, the Court of Session determined that the regulation be altered.
Networking
Regardless of whether a “favoured circle” rule was imposed, legal societies were naturally located in urban centres. While their meetings could be conviv- ial and social occasions, as networking opportunities they had limited poten- tial. Lawyers, however, had social bonds outside such organisations which brought them closer to other lawyers and also, perhaps more importantly, to potential clients. In particular, family bonds were a natural source of clients and mutial aid. Counsel often obtained clients from siblings and cousins who were law agents. Many of these were members of the extended family. The working correspon- dence of the advocate John Mackenzie of Delvine, for example, between c. 1683 and 1700, reveals 101 clients about half of whom were Mackenzies.104 This was not untypical. Eighteenth-century Scotland was a society with comparatively high literacy and across the country there was a plethora of local clubs, societies and cof- feehouses where other social contact might be established. Freemasonry was also prevalent and evidence suggests that it may have been particularly so within the law.
101 Ibid., fol. 23. 102 Ibid., Replies for John Davidson fol. 27. The cost of living in Edinburgh could be prohibitive for inferior court practitioners; see Finlay, Community of the College of Justice, 161. 103 nrs, Court of Session, Bill Chamber, CS271/32892, Replies for John Davidson, fol. 28. 104 Watt, “Chiefs, Lawyers and Debt,” 186, Appendix vii; see also Finlay, Community of the College of Justice, 129, 132, 143.
How significant the masonic lodge might be as a point of contact is revealed in documents from Dumfries in 1801. Two writers, James Spalding and William Gordon, deponed before a jp that a list of the members of St Michael’s Lodge in the town was complete and that “no other order of masonry than the three Ancient Orders of Entered Apprentice, Fellow Craft and Master Mason” had been known within that Lodge.105 The membership list contained twenty-six names of which no less than ten were writers.106 Other members of the Lodge included excise officers, surgeons and mer- chants, including merchants in Annan and in Liverpool, all of whom might represent potential clients. The list names influential writers in Dumfries, including the procurator fiscal in the commissary court (and later town clerk) Francis Shortt, whose social prominence also came to reflect his stand- ing within freemasonry.107 Government interest in such societies in the 1790s was prompted by the fear of sedition. At the other end of the country, a similar list, of the members of the St Laurence Lodge of Freemasons in Forres, was made in 1799.108 Only a couple of the thirty-eight members were local writers (although the male population of Forres in 1801 was only 1274). Of the 193 members of the Kilmolymock Lodge of Operative Masons in Elgin, only two, Robert Grigor and Alexander Collie, were definitely writers.109 At the Trinity Lodge in Elgin, however, four of the forty-four members followed that profession.110 In most of the contemporary lists of this nature no professional designation is recorded. Some lists, however, arise from places that were not great legal centres and had modest numbers of lawyers.111 In Edinburgh, many lawyers were freemasons, some of them high-ranking. The writer Robert Alison was for several years secretary of the Grand Lodge and later a number of advocates and judges, including Joseph Williamson, Alexander Wight, James Boswell and David Dalrymple, were also elected
105 nls, Acc. 6551/17. 106 Lodge St Michael Kilwinning in Dumfries was chartered on 9 Apr. 1755: Scottish Masonic Records 1736–1950, ed. G.D. Draffen (Coupar Angus: William Culross & son, 1950), 10. 107 James Smith, History of the Old Lodge of Dumfries (Dumfries: J. Maxwell & son, 1892), 64. On Shortt, see Finlay, ed. arnp, ii, no. 2093. 108 nrs, JP10/2/2. The lists were made under “An Act for the more effectual suppression of Societies established for Seditious and Treasonable Purposes; and for better preventing Treasonable and Seditious Practices”: 39 Geo. iii, c. 79. 109 Both were notaries, see Finlay, ed. arnp, ii, nos 2334, 2750. 110 Patrick Duff, Thomas Sellar, Alexander Allan, Alexander Falconer. All but Sellar were notaries: see Finlay, ibid., nos. 2332, 2663, 2744. 111 Even in Elgin, in the period 1750–1799, only nine writers became notaries.
Resources
Finally, it is worth recognising the limitations upon legal societies, particularly in terms of resources. Their records generally contain good information about the state of their accounts, including how much they had at their disposal for the benefit of poor members and their families, and it is clear that many demands were made on slim resources. Occasionally a society would pay funeral costs but care had to be taken to ensure that only deserving pensioners were paid and only according to need. Thus in 1790, when it was discovered that Mrs McLehose had funds left by her father to support her and her child, the Faculty of Procurators in Glasgow voted to provide her with no further charity.115 The development of libraries and widows’ funds in larger societies represented serious investments, and required a close eye to be kept on the admission rate to ensure the future funding of any commitments that went beyond the traditional support for the vulnerable. The Faculty of Procurators in Glasgow did not begin seriously to discuss the formation and management of a widows’ fund until a committee was formed in 1791.116 Following reports in 1805 and 1811, it was not until 1813 that proper regulations for such a fund were drafted, and then not without oppo- sition.117 A great deal of groundwork had to be laid before such a project was
112 David Brewster, The History of Free Masonry, Drawn from Authentic Sources of Information with an Account of the Grand Lodge of Scotland, from Its Institution in 1736, to the Present Time (Edinburgh: Printed by Alex. Lawrie and for Alex. Lawrie, 1804), 196, 210–211. 113 A.M. Mackay, “Sir Walter Scott – Freemason,” in Masons and Masonry; Selected Articles from the Grand Lodge of Scotland Year Books, 1953–1972 (London: A. Lewis Masonic Publishers, 1983), ed. George Draffen, 137–140. 114 E.g. alsp, Miscellaneous collection, vol. 17 (1749–61), no. 24, Minutes, Robert Sinclair master-mason of the Mason-Lodge in Elgin, Against Thomas Hutchison, alias Hutcheon, Glover in Elgin, 7 Jul. 1747; see also, Elchies collection, vol. 3, no. 103. 115 rfpg, Sederunt book 1761–1796, fol. 190. 116 Ibid., fol. 196. 117 Ibid, Sederunt book 1796–1832, fols. 121, 189–198, 207–215.
118 E.g. ibid., fols. 157–158; on the legal opinion, see fol. 220. 119 Ibid., fol. 192. 120 sl, Sederunt book 1750–1784, fol. 390. 121 sl, Sederunt book 1785–1805, fols. 417, 518, 537; An Act for raising & securing a Fund for making Provision for the Widows of the Writers to His Majesty’s Signet in Scotland: 43 Geo. iii (1803), c. 107. 122 sca, Fraternity of Writers in Stirling, minute book, PD145/1, 22 Dec. 1715. 123 rfpg, Sederunt book 1761–1796, fol. 108. 124 acaa, Society of Advocates, Sederunt book 1777–1799, D528/2/1, 12 Jan 1778.
Conclusion
The solidarity of lawyers was more than the product of their self-interest. They took pride in the honour and status of their profession. They were, after all, “procurators for the public”, holding a public office, and obtaining the approval of a royal charter simply reinforced this. The Society of Procurators in Ayr even asserted that they were incapable of seeking any privilege “by which the public interest is not promoted, as well as their own honour and respectability.”125 Members who became benefactors were honoured. In Stirling, the Fraternity of Writers declared its intention to have “ane monument of stone or timber” erected in the first house they purchased on which they would inscribe the name of William Rind, a deceased member who had left money for the use of their poor.126 In Aberdeen, when George Forbes received letters from the king of Prussia, Frederick the Great, and his ambassador in London, in 1781, praising his man- agement of a cause regarding a Prussian subject who had recovered his prop- erty in Scotland, the Society of Advocates took great notice.127 This was clearly a source of delight for his fellow members, “as probably there is not one instance in any other inferior court in Scotland of a letter from a King under a royal subscription and seal.” It was ordered that the letters, and translations from the original French, be preserved with the Society’s impor- tant papers. Education was a common bond and the continuity of the system of appren- ticeship was carefully guarded. The WS Society, in 1753, pointed out the impor- tance of the proper and regular education of its members as being vital “to the safety of the Lieges, as well as to the honour and character of the Society.”128 Yet the standard of local practitioners might often leave something to be desired. Writing in the 1820s Henry Cockburn, for one, was scathing about their quality and that of sheriffs who were cut off in their provincial centres with only such “district practitioners” to guide them.129 Would Professor George Joseph Bell be improved, he asked, by being forced “to associate most of the year with Affleck [Auchinleck] or Ayr procurators?”
125 nrs, Court of Session, Bill Chamber, CS271/71484, Memorial for the Society of Procurators before the Sheriff Court of Ayrshire against Alexander Jamie, and Others, 25 June 1813, p. 12. 126 sca, Fraternity of Writers in Stirling, minute book, PD145/1, 12 May 1715. 127 acaa, Society of Advocates, Sederunt book 1777–1799, D528/2/1, 31 Jan. 1783. 128 sl, ws Society Sederunt book 1750–1784, fol. 36. 129 Henry Cockburn, Letters Chiefly Connected with the Affairs of Scotland (London: W. Ridgway, 1874), 48.
The bonds between lawyers could be intensely local. Despite wider net- works of contacts, and relationships with corresponding agents across the country, there was no necessary bond between men who worked in different courts or in different regions. We have already seen that those who sought entry to a particular court, without having trained there, might encounter strong resistance. It was only with the introduction in 1785 of the hated attor- ney tax that the beginnings of a national solidarity began to emerge as the interests of the whole profession were threatened.130 Even by 1800, however, a united profession still lay far in the future and such solidarity as existed within the profession tended to be seen in local, not national, terms. The next chapter, with its focus on burghs, examines a particular aspect of localism: lawyers in the service of public corporations.
130 See, generally, Finlay, “Tax the Attornies!”.
There was laid before the council a Memorial and Queries drawn by Mr [William] Eliott the touns agent with Mr Alexander Lockharts signed opinion thereon….1
Burghs in Scotland varied in size and economic importance and ranged from large royal burghs to burghs of regality and smaller burghs of barony. Their magistrates generally went to great lengths to ensure that actions competent to their own courts were heard there in preference to competing jurisdictions. In 1698, the town council of Glasgow noted how “just orderly and natural” it was for burgesses to promote the good order and benefit of their own commu- nity by making use of the burgh court whose bailie constituted their “judge ordinary.”2 For their mutual benefit, all actions should be discussed and brought to a conclusion within the burgh rather than in some “extraneous” court of doubtful jurisdiction. The particular target of the council was the court of the bailie of the regality of Glasgow. The “litigious and malicious humor” of some inhabitants had led them to prefer this court to that of the burgh magistrates. Not only did the council regard this as damaging to community cohesion, but it had practical repercussions for the magistrates, clerks, fiscals and other burgh officers. After all, the fines of their court were applied by the magistrates for the supply of the poor and other pious uses within the burgh. Using its authority to make enactments for the good of the commonweal, the council ordered that in future no inhabitant of Glasgow should “directly or indirectly” prosecute any action for “debt, slander, wrong, ryot, blood, remove- ing, liniating or any other action or process” competent before the magistrates of the city, before the regality court “or any other incompetent doubtfull foraigne or less proper jurisdiction.”3 This was to apply across the board, to merchants and trades alike, and if contravened a fine would be payable.
1 sba, Selkirk tcm, BS/1/7, 4 Jan. 1763. The memorial related to liability for the expense of building some dykes on burgh land adjoining the estate of Pringle of Haining. 2 gca, Glasgow tcm, C1/1/ 21, fols. 30–33, comma added. 3 “Liniating” refers to the brieve of lining by which boundaries would be marked, for example, prior to construction within the burgh.
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In this Glasgow acted consistently with parliamentary legislation that tradi- tionally encouraged cases to be brought before the judge ordinary.4 In Perth in 1739 the old burgh statutes were read and ratified with this very much in mind.5 The fiscal, Walter Miller, was instructed to prosecute any inhabitant who con- travened former acts of council prohibiting them from pursuing fellow inhab- itants before any inferior judges other than the magistrates of Perth. He was, however, first to “lay before the Magistrates the particular cases he intends to try and Receive Directions from them thereanent.”6 Similarly, in 1682, the burgh of Haddington made a comparable enactment to that later made in Glasgow, prohibiting burgesses and inhabitants from pursuing one another before outside courts.7 This was repeated in 1722. Part of the justification given was the expense, and damage to a man’s business, involved in being called before another court and a fine was prescribed. Anyone pursued before an inferior court other than the burgh court had the right to a sixth part of the fine provided he could prove to the fiscal a contra- vention of the 1722 provision. In the burgh of Lanark the magistrates per- ceived a different threat, in the form of William Hamilton, commissary of Lanarkshire.8 Their attempt to force him to hold his court within the burgh was met with stern resistance. Hamilton litigated to assert the right, under his commission, to hold courts anywhere within the commissariat of Lanarkshire as he thought most convenient. As well as promoting and making possible burgh court practice, town councils employed lawyers administratively and relied heavily upon them.9 A glance through the minutes of almost any burgh in the eighteenth century will uncover instances where councils sought legal advice. The minutes were usually kept by town clerks who themselves were generally writers and notaries. Legal opin- ions are sometimes engrossed in the minute books and the payment of fees to lawyers by town treasurers is often recorded. From the perspective of lawyers, town councils offered excellent opportuni- ties. The office of town clerk was a respected and influential position within any local community and it enjoyed a guaranteed income. Being retained to
4 E.g. rps, 1672/6/26, Act concerning arrestments used within burghs; 1672/6/50, Act anent the regulation of the judicatories, s.16; 1696/9/150, Act against prophaneness. 5 pkca, Perth tcm, B59/16/4, fol. 37. 6 Ibid. 7 elca, Haddington tcm, had 2/1/2/13, fol. 76. 8 alsp, Miscellaneous collection, ser. 17, vol. 1737–43, nos 140–143. 9 For the sixteenth century, see Finlay, Men of Law, 40–2. There was no requirement for them to be burgesses in the eighteenth century.
10 saul, Crail burgh court minute book, B10/9/1. 11 Ibid., Crail tcm, B10/10/3, 9 Feb. 1762. 12 George Lindsay (adm. adv. 1715, d. 1764). 13 nrs, Privy seal register, PS3/9, fol. 318. His grandfather was John Lindsay (adm. adv. 1681, d. 1715). 14 A contemporary councillor, also called John Lindsay, is recorded: saul, Crail tcm, B10/10/3. 15 saul, Crail tcm, B10/9/1, 28 Sep. 1763.
to appoint an assessor to give them proper advice & assistance in any of their affairs and business in which his advice & assistance may be thought necessary.17
The man they appointed, and who took the job seriously enough to be present in order to take the oath de fideli, was Ilay Campbell. Campbell was better con- nected to the west than the east coast, but he was a rising man at the bar. The councillors of Crail knew their share of Edinburgh writers and advo- cates and may be safely assumed to have taken soundings as to whom to appoint. In 1762, when they elected one of their bailies, William Clark, as com- missioner to go to Edinburgh to attend the annual Convention of Royal Burghs, they named as his assessor another advocate, William Johnston. Johnston was “assessor” in a different but connected sense to that used to describe Campbell. His role was not legal (many if not most assessors to the Convention were laymen, often merchants), although he was there to advise and assist the com- missioner on matters of economics and politics affecting the common inter- ests of the royal burghs. In 1764 the council selected another advocate, William Nairne, for this task. Indeed the burgh generally preferred an Edinburgh lawyer in this role (in the 1770s it was often the writer William Chalmer), sending one of the councillors as commissioner.18 Not long before Ilay Campbell’s appointment, the town clerk of Crail demit- ted office.19 The council had written to the Edinburgh writer William Simpson offering him the post and, although he accepted, he did not take up the office until the following March. In the meantime, another Edinburgh writer, Duncan Macdonald, became interim town clerk, holding office, as would Ilay Campbell, purely at the council’s pleasure.20 On the other hand Simpson, when installed as town clerk, was appointed “ad vitam aut culpam”, to hold office for life sub- ject to removal for misconduct.21
16 F. Grant, ed. The Faculty of Advocates in Scotland 1532–1943 (Edinburgh: Scottish Record Society, 1944), 124. 17 saul, Crail tcm, B10/9/1, 30 Dec. 1765. 18 Ibid., 25 Jun. 1764. 19 Ibid., 9 Dec. 1765. 20 Ibid., 26 Dec. 1765. 21 Ibid., 20 Mar. 1766.
In the 1770s, Crail town council had correspondence with the writer David Forbes who seems to have become the burgh’s de facto Edinburgh agent. Forbes, admitted as an agent in the Court of Session in 1755, was highly experienced.22 The council wrote to him in 1770 when the tacksman (lessee) of their mills began erecting a new mill without permission. The council interrupted the building and asked Forbes for his advice, instructing him to record an instrument in the Register of Interruptions and “to take advice of able councill at Edin[bu]r[gh].”23 This reference to “able councill” need not necessarily mean that Ilay Campbell was no longer Crail’s assessor. In fact, he was the man Forbes consulted. The rec- ommendation was that a bill of suspension be brought and that an action of declarator be raised in order to ascertain the burgh’s exclusive right to use the water to be employed at the planned mill. Forbes also asked the council to send him the original charter of 1635 which secured the town’s sasine in the lands where the mill was being illegally constructed.24 As things turned out, this was another dispute with the Moneypenny family of Pitmillie from whom the tacks- man, Robert Edmond, alleged he had leased the right to use the water. This mat- ter rumbled on for a couple of years, with the council unwilling to yield their rights. In 1772 Edmond petitioned to lease another mill and the council responded vigorously that they would make no agreement with him “till he reimburses them” for the legal expenses they had thus far incurred.25 Forbes sent in his own account of expenses, just over £59, leaving blank his and his servants’ fees. This prompted the town clerk to write back desiring him to settle his fee.26 This snapshot of a dozen years in the legal life of a small burgh shows the entire legal apparatus in operation, stretching from those on the ground in Fife to those in Edinburgh where the best advice could be obtained. This chapter will explore further the relationship between burghs and their lawyers and also how the legal needs of the Convention of Royal Burghs, the most important policy-making body in Scotland’s mercantile life, were met.
Assessors
In Roman law assessors were men with legal knowledge who assisted magis- trates and judges in their deliberations.27 Edinburgh town council employed
22 nrs, Court of Session, books of sederunt, CS1/14, fol. 12v (6 Mar. 1755). 23 saul, Crail tcm, B10/9/1, 9 Aug. 1770. 24 Ibid., 26 Nov. 1770. 25 Ibid., 9 Mar. 1772. 26 Ibid., 10 Aug. 1772. 27 D.1.22; C.1.51,2.
28 See Finlay, Community of the College of Justice, 65–73. 29 Seventeenth-century examples include Thomas Hope of Craighall, Sir George Mackenzie of Rosehaugh and Sir John Nisbet of Dirleton: Ibid., 66; James Avon Clyde, ed. Hope’s Major Practicks (Edinburgh: Stair Society, 1937), ix. 30 nrs, Court of Session, extracted processes, 1st arrangement, Inglis office, CS233/Y/1/21, Overtures humbly offered Regulation of the Baillie Court of Leith, Reg. 23. 31 nrs, Court of Session, extracted processed, 1st arrangement, Inglis office, CS233/Y/1/21, “Answers for the Society of Procurators at the Court of Leith,” n.d., p. 2. 32 nrs, Linlithgow tcm, B48/9/10, fo 133; pkca, Perth tcm, PE1/1/1, 4 Feb. 1754; dac, Dumfries tcm, A2/19, 9 Oct. 1775; see also Finlay, “Corruption, regionalism and legal practice,” 170–1. 33 nrs, Court of Session, book of sederunt, CS1/15, fol. 118r; sba, Selkirk tcm, BS/1/8, 7 Oct. 1772. 34 sba, Selkirk tcm, BS/1/9, 3 Oct. 1781.
35 saul, Crail tcm, B10/10/3, 30 Dec. 1765. 36 nrs, Burntisland tcm, B9/12/17, fol. 54. 37 nrs, Irvine tcm, B37-12-5, fol. 24. 38 E.g. nrs, GD25/8/726a,b; GD25/8/807a. 39 elca, HAD/4/6/96/42. 40 elca, MUS2/1/4, fol. 42. 41 nrs, Privy seal register, PS3/7, fol. 136. Smollet was agent by 1713. He demitted on 4 Jul. 1728: SL30/1/1/10, fol. 265. 42 nrs, Linlithgow tcm, B48/9/10, fol. 133 (11 Nov. 1743).
from having some Gentleman learned in the Law, appointed assessor to this burgh, to give his advice and assistance in any doubtful or intricate matter relateing to the welfare of the community or adviseing any pro- cesses which may come before the Magistrats or upon what deliverances may be given upon Petitions presented to the Councill.48
43 hac, Inverness tcm, BI/1/1/9, fol. 72R; BI/1/1/11, fol. 3. McIntosh was appointed jointly to assist the ageing Robert Fraser. 44 Ibid., fol. 106r. 45 Ibid., BI/1/1/10, fols. 349, 491; [Duff, ed.], Culloden Papers, 67. 46 Ibid., BI/1/1/10, fol. 521. Alexander was son of John McLeod of Muiravonside (Linlithgowshire), nephew of McLeod of Contullich (Ross-shire): nrs, RH8/1082. He was not known directly to the councillors. 47 E.g. hac, Inverness tcm, BI/1/1/11, fol. 251; BI/1/1/12, fol. 191. 48 elca, Haddington tcm, HAD/2/1/2/17, fol. 112.
This statement effectively sums up the role of assessor from the perspective of burgh councils. Edinburgh aside, there is limited evidence of assessors actually advising magistrates in the bailie courts. One example is an opinion written in April 1767 by John Craigie for Perth magistrates. This was written at his home in Kilgraston and had probably been left undone until the vacation of the Court of Session. It related to a process still depending before the magistrates of Perth at the instance of the burgh fiscal.49 Craigie’s opinion, on the uttering of false halfpenny coins, related to the law (whether a statute applied in Scotland or was restricted to England); the quality of the proof in the depositions and whether it justified conviction; and the appropriate penalty to be applied.50 His comment to the town clerk, “tis pretty much what had occurred to your- self”, may be true; the points at issue were not particularly complex. However, Craigie determined that there was sufficient proof to convict one merchant but not another. Unlike wealthy private clients, councils were less interested in the relentless pursuit of victory than they were in avoiding unnecessary expenditure. Having already spent much time and money in a boundary dispute with the laird of Cadboll, in January 1787 the burgh of Tain instructed its Edinburgh agent, Thomas Manson, to lay a memorial
before some Lawier of established reputation in business, and get his opinion, whether or not it will be more prudent to insist in the process as it stands, and bring it to conclusion, as speedily as possible.51
If the grounds of action were well founded, they instructed “the Lawier to make out, and the Town agent to cause print and present such Complaint with all possible dispatch.” As it happens, Tain did have an assessor. At an earlier stage of the Cadboll action, in 1776, Edward McCormick enjoyed that role.52 In December 1786, however, McCormick had been elected one of the assessors of Edinburgh and had perhaps been obliged to resign his position with Tain, leaving a temporary vacancy.53 Whether or not because of the new opinion, Cadboll quickly offered
49 pkca, B59/38/4/4, Opinion of John Craigie. 50 On the question of the geographical extent of statutes, see Finlay, “Jurisdictional complexity in post-Union Scotland” (forthcoming). 51 nrs, Tain tcm, B70/6/1, fol. 89. 52 Ibid., fol. 3. 53 eca, Edinburgh tcm, SL1/1/108, fol. 350.
54 nrs, Tain tcm, B70/6/1, fol. 95. nrs, Correspondence of John MacFarlan ws, GD247/174/1. 55 On arbitration, see generally John Finlay, “Arbitration in Eighteenth-century Scotland” Juridical Review (2011), 277–291. 56 [Buchanan], Reminiscences, 16. 57 gca, Glasgow tcm, C1/1/26, fol. 247. 58 sba, Selkirk tcm, BS/1/6, 20 Feb. 1745. 59 nrs, Linlithgow tcm, B48/19/12, fol. 41.
A slightly different issue called for the opinion of Andrew Crosbie for Dumfries town council in 1779, when the Ayrshire creditor of a local man threatened to prosecute the councillors for their refusal to put the debtor in prison. The council wanted to know whether its refusal to do so, unless the creditor fixed a domicile in Dumfries where intimation could be made to him should the debtor apply for aliment, was valid.60 Burghs were always willing to litigate to protect their perceived rights. In Lauder, an attempt was made to re-establish a toll over carts passing through the burgh, over the objection of the inhabitants of Melrose who argued that this was an illegal extension into a general right of an ancient privilege which was restricted only to charging a toll when a market or fair was being held.61 There are many other examples. Particularly in times of crisis, however, such as the Glasgow malt riots or during the fallout from the Porteous riot in Edinburgh, money was no object when it came to defending the reputation of a town and its magistrates.
Town Agents
In regard to employing agents to manage their legal actions in the Court of Session, town councils either employed a permanent law agent in Edinburgh or made ad hoc appointments whenever the need arose. The former approach was more common because councils needed the services of an agent for mat- ters beyond the jurisdiction of their magistrates or which required specialised knowledge, in particular an understanding of central court procedures. The “toun’s agent” was an Edinburgh-based lawyer, often a writer to the signet, who engaged directly in correspondence with the town clerk and, if need be, the provost and other council officers. Employing a permanent agent was effective because it gave scope for the lawyer-client relationship to develop over time. This allowed the agent to become familiar with the burgh’s constitu- tion and its history of litigation; to appreciate its economic and social priori- ties, and to identify the most important potential threats to its well-being.
Ad hoc Arrangements
The ad hoc employment of agents was generally practised only amongst smaller and poorer burghs who rarely litigated in Edinburgh. The burgh of
60 dac, Dumfries tcm, A2/20, 22 Nov. 1779. 61 alsp, Kilkerran collection, vol. 22, no. 3.
Falkland, for example, faced with a demand for payment in 1759 from the earl of Rothes, as chamberlain for crown rents in respect of flour milled fifteen years before, sent a bailie and the town treasurer to Edinburgh to petition the barons of exchequer.62 Having sisted diligence until the exchequer court was held in June, they were sent back to Edinburgh in order “to Consult and employ an Advocat and Agent anent that affair.” They employed the advocate David Graham and Alexander Orme ws with whom they left the receipts for payment to previous chamberlains that were given to previous tacksmen (ten- ants) of the mill at Falkland. Council elections were regularly disputed and often occasioned the engage- ment of law agents. In January 1734 James Naysmith ws noted that “not a day passes but the Bench are ane hour or two imployed on Electione affairs.”63 Five years later, Alexander Lockhart identified the reason for this with his comment that “most of the little Burghs in Scotland are rent with Faction and Divisions.”64 These could spill over into rioting, as took place in Selkirk in 1743. John Pringle (Lord Haining), the former member of parliament and one of the judges in the Court of Session, was accused with his son of trying to influence the Selkirk trades, by “carousing drinking & caballing with tradesmen” in order to over- turn the council at the election.65 His son, Andrew (the future Lord Alemoor) was not admitted as burgess and the council refused to receive him “as being concerned in the mob that happn’d yesternight.”
Permanent Agents
Town agents are often recorded in council minutes where there is reference to instructions being sent to them and discussions being held with them by bai- lies, town clerks or treasurers. In Burntisland, for example, the Edinburgh writer John Boswell of Balmuto was chosen as agent for the burgh in 1737.66 A few months later, one of the bailies and the town clerk were to advise with him and instruct him to employ the solicitor-general, William Grant, “or such other lawyers as they shall see most convenient”, on behalf of the burgh.67
62 saul, Falkland tcm, B25/5/1, fols. 4–5. 63 nrs, Murray of Broughton papers, GD10/1421/8/384/1. 64 alsp, Miscellaneous collection, ser. 17, vol. 1739–42, no. 76, Answers for John Barr Mason and Wright in Rutherglen, and William Spens Writer there, 16 Feb. 1739, p. 2. See also Dreghorn collection, vol. 30, no. 46, p. 1. 65 sba, Selkirk tcm, BS1/5, 16 Sep. 1743. 66 nrs, Burntisland tcm, B9/12/17, fol. 205. 67 Ibid., fol. 232.
Correspondence from the 1750s to the 1780s, involving the Edinburgh agent for the town of Perth, James Beveridge, reveals something of the dynamic of the working relationship between town clerks, councillors and their law agent.68 It also illustrates how relatively trivial matters might easily generate paperwork. Beveridge was the son of a vintner in Perth but had trained as a writer in Edinburgh and became a notary in 1752.69 He appears to have been acting as clerk to the advocate Robert Craigie in 1751.70 In 1769 the treasurer of Perth, Robert Robertson, brought a complaint against the wright James Steedman in order to preserve a servitude right of support in favour of property owned by the guildry.71 Steedman had demolished a twenty four inch thick supporting wall and was replacing it with one only four inches thick. He tried to decline the jurisdiction of the dean of guild court, because guild members were involved, and a bill of suspension in the Court of Session resulted. While this was being heard, Steedman carried out new build- ing work when his right to do so was sub judice, leading to a fresh complaint, dated 23 November 1769, that he was acting in contempt of the authority of the court. Before printing the complaint, on 15 November, Beveridge asked that the building plans be sent to him (these are commonly found in such processes) and that the town clerk, Walter Miller, inform him of “any facts not hitherto noticed or which have been misrepresented.”72 On 25 November Beveridge wrote again, inclosing a copy of the complaint (signed by Andrew Crosbie) and informing Miller that the court had ordered answers to be submitted within ten days.73 On 6 December, the answers were submitted and Beveridge spoke to Crosbie before writing to Miller, asking the latter to send him “such observa- tions as occur upon the facts.”74 Steedman had denied most of the allegations, and Beveridge commented that his answers were “a most impudent paper, & founded on falsehoods…it is amazing what lengths some people will go.” The following day, Beveridge wrote again. The court had remitted the case to the lord ordinary for decision.
68 Beveridge died in 1797. His son William, who became a notary in 1784 and a ws the following year, seems to have taken on the role: Finlay, ed. arnp, ii, no. 2351; e.g. pkca, B59/26/1/90. 69 Finlay, ed. arnp, i, no. 1382. His father, James, was sometime town treasurer of Perth: e.g. pkca, Perth tcm, B59/16/4, fol. 180r (12 Dec. 1748). 70 pkca, B59/38/6/79/32, James Graham ws to George Miller, 24 Oct. 1751; Ibid., B38/2/261, Beveridge to Miller, 30 Nov. 1751. 71 Ibid., B59/38/4/7, The Petition and Complaint of Robert Robertson, Merchant, and present Treasurer of the borough [sic] of Perth, 23 Nov. 1769. 72 Ibid., B59/38/4/5. 73 Ibid., B59/38/4/8. 74 Ibid., B59/38/4/10.
During advising, “the other side” seemed to have cast in doubt something already discussed in a previous stage of the process. Beveridge therefore requested that a copy of a previous letter of his, from August, be sent to him because “I can absolutely depend on the account I then gave you of the pro- ceedings.” This suggests that he kept no copy of his outgoing correspondence in a letterbook..75 In February 1770 Beveridge had to leave for London where he would remain for most of that session of the court. He informed Miller that his clerk, Thomas Miller, would correspond with him and that the guildry case would be carefully attended to “as a Brother is to take the superintendency of my affairs in my absence.”76 Unfortunately, the case is not later discussed. Beveridge had a close working relationship with the town’s lawyers, not only his own employer, Robert Craigie, but also the man who replaced him in 1754, John Craigie of Kilgraston.77 At the end of March 1753, during the Court of Session’s vacation, he wrote to the town clerk that:
Mr Craigie seems to be quite unresolved at present as to the time of his coming to the country but if business throngs him as much after this as it has done since the session rose I have no hopes of his leaving this under three weeks hence.78
Twenty years later, Beveridge favoured Henry Dundas. Andrew Crosbie and Alexander Lockhart as counsel. In one case, having already consulted Lockhart and followed his directions in the matter, he queried whether it would not “therefore be more proper to consult him than any other, on the completion of it?”79 Much of Perth’s litigation related to the right to fish for salmon in the River Tay and the council was jealous of any encroachment on “the town’s fishings.”80 Such disputes required careful checking of title to property before a legal opin- ion could be sought or a condescendence drawn.81 Burgh litigation in general was heavily biased towards revenue matters, such as the payment of feu-duties.
75 A letterbook (containing copies of all letters sent out) seems an odd thing to neglect, although it is impossible to know how common such letterbooks were in the eighteenth century. Not that many seem to have survived, even from the nineteenth century. 76 Thomas Miller may have been related to the town clerk’s family. 77 pkca, Perth tcm, PE1/1/1, 4 Feb. 1754. 78 pkca, B59-38-2-263, James Beveridge to Geo. Miller, 29 Mar. 1753. 79 pkca, B59/38/4/5/55, James Beveridge to Walter Miller, 8 Dec. 1772. His relationship with Lockhart was also noted above in Chapter 2. 80 E.g. pkca, Perth tcm, B59/16/14, fols. 84r, 123v, 168v, 196r-v. 81 pkca, B59/38/2/238, Geo. Richardson to Geo. Miller, 17 Jan. 1751.
Perth was no exception. In one case Beveridge intimated that he had sent a copy of a memorial to John Craigie’s clerk in order that he lay it before an accountant to have his opinion upon the payment of feu-duty.82 Beveridge regularly travelled to Perth on business and the advocates for the town often returned there, particularly during vacations. It is worth noting that, just as the town clerkship descended in the Miller family, so the role of town’s agent descended in the Beveridge family, with James’s son, William, active in the 1790s in the council’s legal affairs in Edinburgh.83 Smaller burghs, like the burgh of Newton in Ayrshire, also employed perma- nent agents. For Dumfries, Hugh Corrie ws was the town’s “ordinary agent” in Edinburgh for several years.84 The minute book of Newton upon Ayr town council, however, contains few references to legal disputes. From 1782 the council employed John Hunter ws as Edinburgh agent and his workload included an action by the manager of a local coalmine that he had to defend in 1783.85 Hunter soon found himself working with George Fergusson (later Lord Hermand), an Ayrshire advocate who was a natural choice as the burgh’s asses- sor.86 Another Edinburgh writer, Thomas Grierson, who was originally from neighbouring Kirkcudbrightshire, later replaced him.87 The more substantial burgh of Dundee was particularly well provided for in terms of lawyers. In 1711 George Duncan ws was elected as the town’s Edinburgh agent in succession to Alexander Alison.88 Duncan’s servant, Robert Pitcairn, later became Dundee’s procurator fiscal and depute town clerk.89 A steady stream of Edinburgh writers, including Edward Cutlar (appointed in 1717), James Preston, James Graham ws and Alexander Duncan (who succeeded Graham in 1763), were successively employed as the town’s agents. Just as Pitcairn found employment in the burgh, so William Chalmers worked his way up, from a writer sometimes employed by the council to handle processes before the sheriff court, to procurator fiscal and “underclerk” of the burgh and then, from 1772 to 1817, principal town clerk.90 Dundee was able to instruct
82 pkca, B59/38/4/5/48, James Beveridge to Walter Miller, 11 Oct. 1771. 83 E.g. pkca, B59/24/3/18; B59/25/1/86. 84 dac, Dumfries tcm, A2/20, 10 Jan. 1780; Register of Proceedings of the kirk session of Dumfries, CH2-537-9, fol. 37. 85 aa, Newton tcm, B6/27/2, fols. 78v, 79r. Hunter was from Ayrshire: Finlay, ed. arnp, i, no. 1815. Various Hunters served as councillors in Newton. 86 Ibid., fol. 85r. 87 Finlay, ed. arnp, ii, no. 2449. 88 da, Dundee tcm, vol. 8, fol. 176. 89 Finlay, ed. arnp, i, no. 433. 90 da, Dundee tcm, vol. 10, 19 Apr. 1766; vol. 11, 5 May 1768, 18 Jul. 1772.
Agents’ Income and Expenses
The salaries of agents varied. In Glasgow, Alexander Finlayson in 1698 and John Bogle ws in 1730 were paid at the same rate, noted above, of £100 Scots per year.97 In 1730 the council of Musselburgh showed their appreciation by sending their agent “six cartful coalls for his readiness in serveing all the inhabitants.”98 A committee of councillors approved an account for £65 Scots submitted by
91 For separate opinions from these advocates, see ibid., vol. 10, 24 Jun. 1765; vol. 11, 30 May 1771. 92 da, Dundee tcm, vol. 11, 29 Nov. 1777. 93 See Finlay, Community of the College of Justice, 80–1. 94 E.g. gca, Glasgow tcm, C1/1/30, fols. 437; 522. 95 Ibid., C1/3/33, fol. 508. 96 Finlay, Community of the College of Justice, 81; on Henderson, see Finlay, ed. arnp, ii, no. 2948; Ibid., “Local lawyers and their libraries,” 53. 97 gca, Glasgow tcm, C1/1/21, fol. 207; C1/1/27, fol. 199. 98 elca, Musselburgh tcm, MUS/2/1/4, fol. 103.
Hew Crawford ws to the town council of Inverkeithing in 1740.99 The period of account included a Court of Session process between competing councillors, and Crawford’s fee was one guinea sterling. Smaller burghs, in particular, kept a tight rein on expenditure by their agents. Perth’s agent, John Dundas ws, knew where he stood. When granting a discharge for five guineas in 1743, representing three years’ gratuity, he sent his compliments to the provost and magistrates adding the benediction that he “prays and hopes the lawyers of all kinds shal take litill if any of their money.”100 In 1758 the burgh of Irvine justified the large gratification it had paid its agent because he had been obliged to work quickly and undertake consider- able research.
The greater Dispatch is given, Agent’s Trouble and Attendance is propor- tionally encreased for the Time it lasts; and it is well known, that processes of this Kind, where the Town’s Records, the Books of the Incorporations, &c. are investigated for a Number of Years back, are attended with infi- nitely more Labour and Trouble to the Agent than any common Process, which ingrossed his Time a whole Winter Session.101
There was a tendency for agents sometimes to leave their own fee blank when they submitted an account. This was an invitation for the employer to act gen- erously by proposing a figure the agent himself might not have dared asked. In this manner Allan Clarke, heavily engaged for Linlithgow in a number of suits, left his own fee unstated in the account submitted in 1795. A council committee decided that he ought to be paid 25 guineas, with 5 guineas to his clerk. Before the committee reported to the council, Clarke had conversed with the town clerk and indicated he was not satisfied with the amount, suggesting that “the articles for agent fee should be referred to one or two writers of character.”102 The council agreed to this, but it is clear that care was taken with Clarke thereafter in regard to his salary. The following year, the magistrates met with him personally in Linlithgow to go over his accounts.103
99 nrs, Henderson of Fordell papers, GD172/158. 100 pkca, B59/24/3/16/1, John Dundas ws to George Miller, 5 May 1743. 101 alsp, Dreghorn collection, vol. 1, no. 12, Answers for John Cuming of Migarholm, M.D. pres- ent Provost, and other Magistrates of the Burgh of Irvine to the Petition of James Boyle and others, 6 Jul. 1758, p. 7. 102 nrs, Linlithgow tcm, B48/9/14, fol. 207. 103 Ibid., fo 231; also fols. 237, 293.
The agent for Selkirk town council, William Elliot, stated nothing for his own “pains” in an account he submitted in 1728 in respect of lengthy, highly politicised mutual processes of reduction and declarator brought between the council and the town clerk, William Waugh. He specifically asked the councillors
if he was to be payed as a common agent for his trouble therein or if he was to be continued agent for the toun and payd the yearly sellarie settled upon him by former acts of council for this trouble.104
His normal annual salary was forty shillings sterling. The council voted to con- tinue him in post and to pay him his yearly salary. Elliot had actually been removed from office by a council resolution in October 1725, when the treasurer was instructed not to pay him after November that year.105 Realising, however, that the council had never officially informed Elliot that he had been set aside, they decided to pay him the “bygone sellaries.” Councillors could not afford to allow transgressions to go unremarked, par- ticularly if the agent incurred needless expense by exceeding his mandate. In 1793, the councillors of Burntisland chastised their Edinburgh agent, Robert Jamieson ws, for having instructed the advocate Charles Hay to draw a reclaim- ing petition to the Inner House of the Court of Session.106 He had only been authorised to solicit and report Hay’s opinion to the councillors who would decide on any further procedure. This “very reprehensible” conduct may have been a factor in Jamieson’s being replaced by James Horn ws shortly after the council election in 1794.107 Agents could expend large sums in expenses if the council which employed litigated heavily. They submitted regular accounts to council treasurers. Such expenditure was potentially open-ended and that is why councils tended to keep their agents on a tight lead. In 1765 Councillor Geekie in Dundee had to be authorised to borrow money in order to pay the account of the town’s agent, and such episodes reinforced a cautious attitude amongst councillors.108
104 sba, Selkirk tcm, BS/1/5, 8 Apr. 1728. 105 Ibid., BS/1/4, 7 Oct. 1725. 106 nrs, Burntisland tcm, B9/12/19, 27 Jun. 1793. 107 Ibid., 26 Sep. 1794. 108 da, Dundee tcm, vol. 10, 18 Nov. 1765.
Burgh Jurisdictions
The magistrates were considered sheriffs in themselves, and they were vested with a jurisdiction exclusive of all others within the territory of their burgh.109 Alongside them, dealing mainly with building and neighbourhood disputes, was the lesser jurisdiction of the dean of guild court. The dean of guild dealt with applications “for liberty to build, rebuild, alter, or repair property” in which the neighbouring proprietors were invariably summoned for their interest, so that building operations did not lead to an unsafe environment or unlawful encroach- ment on neighbouring property.110 A number of cases each year went from the deans of guild to the Court of Session. This typically led to the discussion of issues such as damage to prop- erty or the right to light which was a question remitted to the architect John Adam, in 1744, in a case involving a tenement in the Westbow of Edinburgh disponed to the writer John Sinclair.111 The dean of guild also enjoyed jurisdiction over a number of mercantile issues, for example, determining who within the burgh had a right to trade as a freeman and punishing transgressions with imprisonment or fines for using false weights or measures. The dean of guild might act with one or more asses- sors (or, in Edinburgh, might consult with one). One of the dean of guild’s assessors in Cupar, Fife, in 1767, for example, was the writer Thomas Robertson, son of the town clerk.112 Robertson, coincidentally, was later accused of horse- whipping the dean of guild in 1778, Primrose Rhymer.113 Another court, of summary jurisdiction, is also mentioned in some burgh records. In Edinburgh this was called the ten-merk court. The burgh council in Dunfermline consciously sought to model a court of their own based on Edinburgh’s example as described to them in a letter from James Tait, one of the depute town clerks of Edinburgh, in 1773.114 A court was therefore established
109 See, e.g., hac, Inverness tcm, BI/1/10, fol. 97. 110 nrs, Court of Session, Bill Chamber, CS271/14816, “Answers for William Sprott, procurator fiscal of the City of Edinburgh To the Bill of Suspension offered by Robert Playfair writer in Edinburgh”, 12 May 1786. 111 alsp, Arniston collection vol. 85, no. 5. 112 alsp, Dreghorn collection, vol. 30, no. 46, Information for John Stewart, late eldest bailie of the borough of Cupar of Fife, present dean of guild against Robert Monro, pretended dean of guild, 6 Aug. 1767, p. 2. This process sets out the nature of the election of the dean of guild. 113 alsp, Robertson collection, vol. 3, no. 45, p. 6. 114 nrs, Dunfermline tcm, B20/13/11, 2 Jan. 1773.
“for the summar discussing of Claims for small debts, riots, reall and verball Injuries &cera [etc.].”115 Litigants were to be heard personally, with no procura- tors or agents appearing unless the party was indisposed and unable to speak for himself. The judge could give summary judgment “for poinding, warding and arrestment”, although his jurisdiction was limited and no claim for civil debts was to exceed nine merks Scots. Another means of dealing with minor disputes was the use of birlay or bir- lawmen to ensure “that good neighbourhood be observed.”116 These were not lawyers. In Duns, for example, a carter and gardener were among the four “Bourlawmen” appointed for the year in 1755; in Selkirk, the four “burliemen & landimuirs” in 1727 included a flesher and a weaver.117 In the regality of Kilwinning in 1722 it was the earl of Eglinton who personally nominated the “Birlawmen”, five of whom accepted office.118 Burgh courts generally sat in the burgh’s Tolbooth but might occasionally sit elsewhere. In 1725 the bailies in Inverness, for example, held their court at a cairn, a stone pyramid which in this case marked a boundary line, in order to hear “proof of the said know or cairn it’s being the property of the burgh.”119 Like all courts, they issued regulations governing procedure and the standard of behaviour to be adopted by procurators. As we have seen, the members of local societies of procurators practised their profession in the burgh courts as well as in local commissary courts, the sheriff court and in local regality and other courts. Of course, lawyers were often free to prefer particular courts because juris- diction often overlapped. In eighteenth-century Glasgow, the commissary courts (of Glasgow and of Hamilton and Campsie respectively), located in the consistory house of the Cathedral, generally held the dominant posi- tion.120 By the nineteenth century, however, the burgh court had become the most popular venue, in part because of the unpopularity of the sheriff court which few lawyers chose to use.121 The man who directed the burgh court as the council’s town clerk and legal assessor, the advocate James Reddie, was
115 Ibid., 13 Jan. 1773. 116 sba, Selkirk tcm, BS/1/4, 27 Apr. 1725. 117 sba, Duns bailie minute book, BD/1/1, fol. 115, 120; Selkirk tcm, BS/1/4, 2 Apr. 1727. 118 nrs, Regality of Kilwinning court book, RH11/45/3, fol. 34; see also RH11/44/1, fol. 146 (regality of Kilmaronock); nrs, Montrose correspondence, GD220/5/1711/6, GD220/5/1740/13a. 119 hac, Inverness tcm, BI/1/10, fol. 131; nrs, Papers of Robert Man, writer, CC7/18/4, letter from James Moncreiff, 18 June 1774. 120 The Regality Club, (3rd ser., Glasgow, 1899), iii, 83. 121 See above, page 275.
Jurisdictional Conflict
Burghs were keen to assert their jurisdictional independence. Conflicts between the burgh of Dunbar and the sheriff principal of East Lothian, whose head court was in Haddington, provide a good example of why this was important. The inhabitants of Dunbar could trace their exemption from the jurisdiction of the sheriff to a royal charter of 1603. The sheriff was a royal officer, with heredi- tary sheriffs drawn from the nobility, and the medieval development of sheriff courts across Scotland played an important role in extending royal power to localities.123 By the eighteenth century, sheriffs depute carried out the judicial duties of the office. In larger sheriff courts, deputes were often members of the Faculty of Advocates and, from 1748, this was made a mandatory qualification under the Heritable Jurisdictions Act. In 1732 Adam Raeburn, who lived in Belhaven which was under the jurisdic- tion of the magistrates in Dunbar, was summoned to appear before the sheriff depute of Haddington in an action of scandal at the instance of Jean Hog, a married woman who also lived in Belhaven, and her husband.124 Jean and her husband, as one of the bailies of Dunbar pointed out, had already been prose- cuted by the procurator fiscal and fined in the burgh court. They were now attempting to appeal to the sheriff. The bailie immediately instructed the town clerk to appear in the sheriff court at Haddington and protest against the sum- mons. He was to require the sheriff “for the future to forbear from summonding [summonsing] befor his court any of the Inhabitants of this Burgh for anie Account quatsoever [whatsoever].” The clerk, George Fall, was to take with him a copy of the burgh’s charter and ensure that a notarial instrument recorded his protest. It was not the first time that this jurisdiction had been in dispute, nor was it the last. In 1735 a Dunbar merchant named James Kelly was summoned before
122 Reddie (1775–1852) became town clerk in 1804 and, by 1822, was said to hear almost 6,000 cases per year. See George Blair, Biographic and Descriptive Sketches of Glasgow Necropolis (Glasgow: M. Ogle, 1857), 143–148. 123 William Croft Dickinson, ed. The Sheriff Court Book of Fife 1515–1522 (Edinburgh: Scottish History Society, 1928), xxi-liv; Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh: Edinburgh University Press, 1993), 34–5, 49, 82. 124 elca, Dunbar tcm, DUN/2/1/14, 24 Mar. 1732.
125 Ibid., 20 Jan. 1735. 126 Ibid., 7 Jan. 1741. 127 See, e.g., Magnus Ryan, “Bartolus of Sassoferrato and free cities,” Transactions of the Royal Historical Society 10 (1999), 65; Francesco Maiolo, Medieval Sovereignty (Delft: Eburon Academic, 2007), esp. 233–5, 266–7.
128 nrs, CS228/A/4/2, Representation and Petition of James Alexander feuar in the Abbey parks of Dunfermline, 19 May 1772. This paper was presented in the burgh court. The burgh court interlocutor was reported, on 19 Dec. 1772, to have been suspended by the lords of session: nrs, Dunfermline tcm, B20/13/11. See also above, page 278. 129 Ibid., CS228/A/4/2, fol. 3.
The General Convention of Royal Burghs
The legal agent of the Convention of Royal Burghs was always a lawyer based in Edinburgh. On points of current controversy, he would have access to the best legal advice in the form of the assessors appointed by the town council of Edinburgh, a group which generally included the crown’s lawyers. Their opin- ion would be transmitted to member burghs of the convention and can some- times be found recorded in their minutes. In August 1731, for example, the Convention’s agent George Irving ws wrote to the councillors of Dunbar with the legal opinion of the lord advocate, Duncan Forbes (who was one of the assessors of Edinburgh from 1721 to 1738).134 The query addressed to him was a fundamental one:
What are the Remedies competent by Law to the Royall Burrows for restraining of unfreemen from Trading by report & Import; & from retail- ing foraigne goods bought from unfreemen? & particularly whether the Goods belonging to them ar suddenly seizable if found within the liber- ties of any Royall burrow, or if they may be arrested if found without any
130 Ibid., fol. 6. 131 Finlay, ed. arnp, i, no. 1330. 132 nrs, CS228/A/4/2, Suspension, Alexander v Magistrates of Dunfermline. 133 nrs, Dunfermline tcm, B20/13/11, 23 Sep. 1774; B20/13/12, 24 Aug. 1776. See also 27 Oct. 1779 as evidence he still lived in the Abbey park. 134 elca, Dunbar tcm, DUN/2/1/1/4, 16 Aug. 1731. On Forbes as an assessor, see eca, Edinburgh tcm, vol. 49, fol. 85; vol. 59, fol. 1. On Irving and agents for Edinburgh, see Finlay, Community of the College of Justice, 82–3, Appendix 2.
Royal Burrow? If upon tryall, the same may be confiscated, one half to the Crown, & one half to the Burrow, who apprehends or causes arrest the same? & before what Judge ar these Tryalls competent?
His rather comprehensive opinion was based upon a comparison of statutes passed in 1633, 1672 and 1690. It was engrossed in the minutes of Dunbar town council for future reference. Similarly, in 1747 the clerk of the Convention dis- seminated legal advice to the royal burghs on the recent legislation that had introduced the window tax. In North Berwick, this ‘opinion of Lawyers’, read to the councillors on 30 March, prompted them to send a bailie to discuss the tax at a meeting of the commissioners of supply in Haddington.135 Trading by unfreemen was a common matter of complaint in burghs and generated litigation both locally and in Edinburgh. The Lord Advocate’s 1731 opinion, however much it clarified understanding of the law, did not address all aspects of the problem. Fifty years later, for example, John Huston complained about dues charged by the executioner of Dumfries upon him and other “coun- trey people who bring in meat &c to sell in the town.”136 The council resolved to defend the matter. The provost spoke to the town’s ordinary lawyer, Andrew Crosbie, and the council wanted another advocate Robert Corbet, to assist. They instructed their clerk to write to Hugh Corrie ws, the town’s Edinburgh agent, who was “to let Mr Corbet know that the council have pitched on him to assist Mr Crosbie” in defending the process. The royal burghs enjoyed the exclusive privilege of engaging in foreign trade, in return for which they were required to pay one sixth of the cess or land-tax.137 Article 21 of the Treaty of Union preserved this privilege and each royal burgh contributed its share to the cess. In Orkney, under a local arrangement from 1719 between the royal burgh, Kirkwall, and the village of Stromness, whose flourishing harbour attracted many foreign vessels, the trading privilege of Kirkwall was communicated (that is, shared) with Stromness in return for the latter paying a third of the cess owed by Kirkwall. In 1743, however, some of the inhabitants in Stromness objected to making this payment and obtained a declarator in the Court of Session that the magistrates of Kirkwall had no right
135 elca, North Berwick tcm, NB2/1/1/2, fol. 37. Possibly the opinion of the attorney-general, solicitor-general and lord advocate (though dated 16 Apr. 1747) later published in The Scots Magazine 9 (June 1747), 263. 136 dac, Dumfries tcm, A2/20, 12 Nov. 1781. 137 rps, 1672/6/13, Act anent the regulation of the judicatories; 1693/4/108, Act and ratification anent the communication of trade to burghs of barony and regality; 1698/7/164, Act for settleing the communication of trade.
138 eca, crb Sederunt books, SL30/1/1/12, fols. 8. 93, 104, 143–4, 288, 312. 139 alsp, Craigie collection, vol. 46, Answers for Doctor Hugh Sutherland Treasurer of the Burgh of Kirkwall, Charger, with Councourse of the Agent for the Royal Burghs, for their Interest, to The Petition of Alexander Graham and others, 20 Nov. 1752; eca, Edinburgh tcm, vol. 59, fol. 1. 140 On the Convention generally, see Alan R. MacDonald, The Burghs and Parliament in Scotland, c. 1550–1651 (Aldershot: Ashgate, 2007); Theodera Pagan, The Convention of the Royal Burghs of Scotland (Glasgow: Printed at the University Press for the Convention of royal burghs of Scotland, 1926). 141 eca, crb Sederunt books, SL30/1/10, fol. 377r. 142 Ibid., SL30/1/1/12, fols. 473–4. 143 eca, crb Sederunt books, SL30/1/1/14, 13 Jul. 1785. 144 eca, crb Sederunt books, SL30/1/1/10, fol. 60 (Forbes); SL30/1/1/12, fol. 240 (Robert Dundas); fol. 427 (Miller); SL30/1/1/13, fol. 102 (Montgomery); Ibid., 502, 511 (Henry Dundas). The appointment of William Grant has not been traced, but he resigned in 1754 when Dundas was appointed. He probably took office in 1737. 145 Dalrymple was paid 500 merks: SL30/1/1/9, fol. 108v. Dalrymple was lord advocate in the period 1709–11 and 1714–1720.
146 eca, crb Sederunt books, SL30/1/1/11, fols. 426, 445–6 (Graham); SL30/1/1/13, fols. 102, 111–112. 147 Ibid., SL30/1/1/9, fol. 16v. 148 Ibid., fol. 16v. 149 On Hamilton and his successors, see Finlay, “Scots lawyers, England, and the Union of 1707,” 255–58. 150 eca, crb Sederunt books, SL30/1/1/13, fols. 115, 130; SL30/1/1/15, fol. 20; SL30/1/1/14, 10 Jul. 1782, n. 22; SL30/1/1/15, 14 Jun. 1796. 151 Ibid., SL30/1/1/11, fols. 397–9, 403. 152 eca, crb Sederunt books, SL30/1/1/11, fol. 478.
Convention Agents
The law agents who acted for the Convention, quite naturally, were Edinburgh lawyers. The advocate George Smollet held the office early in the century, although generally his successors were writers or writers to the signet. His immediate successor, George Irving ws, had been law agent for the burgh of Edinburgh for almost two years when he replaced him as agent for the Convention in 1728.153 Edinburgh’s legal interests were not identical to those of the Convention of Royal Burghs and this perhaps explains why, unlike in the case of clerks and assessors, this office diverged and, aside from Irving, was not held by the town agents for Edinburgh. After Irving’s death, the advocate Hugh Forbes replaced him in 1742. Forbes was, at the time, procurator fiscal in the High Court of Admiralty. Later agents, Alexander Gray, James Robertson Barclay ws, John Blair and John Gray, were all law agents in Edinburgh rather than advocates. The Convention might employ its law agent directly in an action or it might instruct him to lend assistance to an action that was being brought directly by one of the royal burghs in a case affecting the recognised privileges of them all. An interesting example arose in 1746 when two justices of the peace were per- suaded to grant a warrant to prevent certain people voting in the Inverkeithing burgh elections.154 The provost (the advocate John Cunningham), and the council brought an action against the jps before the Court of Session for ille- gally interfering with the privileges of the Convention which ordered Hugh Forbes to concur in the action and become a party to the cause. The justices apologised, blaming misleading information from a lawyer in whom they had had some confidence, and denied any attempt to derogate from the privileges of the royal burghs. Indeed, they expressed the greatest respect for the Convention, “as a part of the Legislature”, and, on the strength of this apology and proffer of expenses, the case was abandoned. An important task for the Convention’s law agent was to account for mis- sive dues. These arose from a practice whereby the agent advanced the money needed for the next Convention out of the Convention’s own funds, then issued annual missives (summonses distributed to each royal burgh to send representatives to the Convention) which specified the proportion of the Convention’s expenditure each burgh owed. The commissioners, the elected representative from the burghs, brought these “missive dues” with
153 eca, Edinburgh tcm, SL1/1/51, fol. 191; Convention minutes, SL30/1/1/10, fol. 265. Smollet’s accounts had still not been settled in 1739: SL1/1/11, fol. 230. 154 eca, crb Sederunt books, SL30/1/1/11, fols. 471–2.
Clerks
The Convention required clerks and, as with assessors, it looked no further than Edinburgh’s legal community to supply them. In July 1771, after the death of one incumbent, George Lindsay, the preses (chair) of the Convention noted the vacancy and said that
as the Boroughs had usually been in use to Elect the City Clerks of Edinburgh into the office of Conjunct General Clerk to the Boroughs, He hoped on this occasion the Convention would not depart from their usu- all Custom and recommended to them Mr John Dundas.159
155 Ibid., SL30/1/1/13, fol. 100 (the account of Alexander Gray, agent). 156 eca, Edinburgh tcm, SL1/1/13, fol. 8. 157 William Black, The Privileges of the Royal Burrows as contained in their particular rights, etc. (Edinburgh: Heirs of Andrew Anderson, 1707). Black had also been an advocate. 158 eca, crb Sederunt books, SL30/1/1/13, fol. 82. 159 Ibid., SL30/1/1/13, fo 355.
Dundas, a writer to the signet, was duly appointed to act alongside the advocate Joseph Williamson, his fellow principal clerk of the town of Edinburgh.160 The salary of the clerks, shared between them, was the same as that of the Convention’s law agent (£600 Scots or £50 sterling annually).161 Williamson and Dundas had two depute clerks who received £20 sterling between them. James Tait and Alexander Duncan, appointed joint depute clerks of Edinburgh, held these offices for the Convention for many years.162 George Lindsay appointed them for Edinburgh when he took office in 1763 and he also employed them at the Convention.163 Lindsay himself, from 1742, had been one of the deputy clerks alongside James Naysmith.164
Burgh Legal Business
The range of civil litigation in which burghs engaged was extensive. Some mat- ters were unique to local government while others related to common issues of property and neighbourhood police that tended to arise primarily in urban environments. As well as local court books, the Session Papers provide good evidence where attempts were made to advocate matters from burgh courts or to suspend interlocutors of the magistrates in those courts. This is also true of election cases which were heard summarily in the Court of Session because, for obvious reasons, an impartial local hearing was out of the question. Indeed, election cases involved discussion of voter qualification, the requisite qualifica- tion for office-holding according to the sett (that is, the constitution) of the burgh and matters of electoral procedure.165 Allegations of political irregularity were commonplace. The franchise within burghs was an important subject and the right to hold it was spoken of, at least by lawyers, in terms related to citizenship in ancient Rome.166 A connected category of dispute related to the privileges of freemen within
160 Dundas had become joint principal clerk of Edinburgh on 13 Feb. 1771: eca, Edinburgh tcm, SL1/1/88, fols. 26–29; his commission is at fols. 36–41. 161 Williamson resigned in 1785 in order to have his office re-granted to him jointly with John Gray ws who was to succeed him. Gray was also a town clerk of Edinburgh: Finlay, Community of the Community of the College of Justice, 265. 162 eca, Edinburgh tcm, SL1/1/72, fol. 284. 163 eca, crb minutes, SL30/1/1/13, fol. 4. 164 Ibid., SL30/1/1/11, fol. 421. 165 The best discussion remains William Ferguson, “Electoral law and procedure in eigh- teenth and early nineteenth century Scotland” (Ph.D. diss. University of Glasgow, 1957). 166 E.g., alsp, Dreghorn collection, vol. 6, no. 14.
Conclusion
Burghs, individually and collectively, were important for the legal profession. They were centres of notarial activity; they housed courts which provided employment for local procurators, and they generated trade, neighbourhood property disputes, election cases and much other business for the inferior courts and also for the Court of Session. The communities trading within Scotland’s burghs generated a high proportion of actions for the payment of debt. Although their status and wealth varied, burgh councils generally had the resources to litigate on a scale which few others could manage, outside the class of larger landowners. It is notable how many reported cases appealed to the House of Lords had a town council as either appellant or respondent.
167 alsp, Arniston collection, vol. 79, no. 38. 168 alsp, Dreghorn collection, vol. 7, no. 24. 169 alsp, Craigie collection, vol. 53, no. 24, Information for John Wilson, senior, Merchant in Glasgow against The Magistrates of Glasgow, Defenders, 21 Nov. 1758. 170 eca, crb Sederunt books, SL30/1/1/15, 3 Mar. 1792.
The framework of legal services across Scotland seems to have been mod- elled on Edinburgh town council, although no other burgh, not even Glasgow, Aberdeen or Dundee, could hope to match the resources and access to exper- tise which Edinburgh enjoyed. Large or small, however, other burghs did what they could to assert and defend their legal rights by means of litigation and they took care to employ the best lawyers they could afford to advise them on matters of importance. It was natural that lawyers be offered opportunities for progression within the administrative structure of larger burgh councils and those who emerged as town clerks often did so having commenced their careers as notaries and writers. Employment by a burgh council offered regular income. In an unusual case in 1678 the Edinburgh agent, James Carnegie, sought payment of an account from the burgh council of Brechin.171 The councillors alleged that they had entered him as vassal in a piece of land which they had given him gratis and that it was to be presumed that this was in payment of his account. The Court of Session repelled the allegation and denied any such presumption. There was no later repetition of such circumstances. The evidence suggests that the trea- surers of town councils paid annual salaries, and accounts of expenses, in the same way as any private client might do so, except for the fact that treasurers’ accounts were audited and the expenditure had to be duly approved and authorised by a committee of councillors. For lawyers, securing a position within the service of a burgh often depended strongly on personal links and on patronage. Agents, in particular, often seem to have had family links to influential councillors, merchants or members of the crafts. Yet their work could be challenging. The range of cases where the interest of a burgh council was engaged was potentially very wide, taking in matters of commercial law and conveyancing as well as issues of electoral and constitu- tional law. In the criminal sphere, law agents worked alongside the magistrates and procurators fiscal in defending the public interest. It is on the latter office, that of fiscal, in and beyond the burgh court, that the next chapter will focus.
171 Fountainhall, Decisions, 25 Jan. 1679, i, 38.
The Procurator-fiscals of inferior Courts, for the most Part, want but a Hair to make a Tether of, and are still ready upon the Catch, where a Penny is to be made. alexander lockhart, 17391
The office of procurator fiscal has a long history in Scotland and the fiscal’s competence in both civil and criminal matters can be traced back to before the Reformation.2 Central and municipal records contain traces of the office from an early date. Glasgow’s procurator fiscal, for example, is mentioned in the ear- liest council records dating from the 1570s and fiscals are found earlier in Edinburgh and slightly later in Aberdeen.3 In 1610 Scotland’s archbishops and bishops required the judges in commissary courts throughout the country to appoint as fiscals men who were “honest, discreit and responsall [responsible].”4 These fiscals had to render annual accounts to the local bishop and find guar- antors to ensure the propriety of their dealings with the worldly goods of those whose estates were being confirmed. As the word “fiscal” implies, the office originally had a financial aspect. The holder, from an early date, had a responsibility for collecting fines imposed in court.5 As we shall see, this still had resonance in the eighteenth century. By then, however, the activity of the procurator fiscal was generally restricted to the prosecution of criminal complaints in the inferior courts. This developed from the original role of the sheriff, who in the sixteenth century can still be
1 alsp, Miscellaneous collection, ser. 17, vol. 1739–42, no. 76, Answers for John Barr Mason and Wright in Rutherglen, and William Spens Writer there, 16 Feb. 1739, p. 4. 2 David Littlejohn, ed. Records of the Sheriff Court of Aberdeenshire (3 vols, Aberdeen: New Spalding Club, 1904–7), i, xlii–xlvi; William Reid, “The origins of the office of procurator fiscal in Scotland,” Juridical Review 77 (1965): 154–160; Simon Ollivant, The Court of the Official in Pre-Reformation Scotland (Edinburgh: Stair Society, 1982), 54–57; Finlay, Men of Law, 40–1; rps, 1430/55 (quarter seal letter). On the history of the office, see Anon., “A procurator-fi scal— what he was, what he is, and what he will be,” 24–26, 67–70, 140–143, 203–207, 248–253, 317–326, 370–378. 3 Reid, “Origins of the procurator fiscal,” 157, 159. On Glasgow, see the short article in The Glasgow Herald, 18 Feb. 1910, by “R.R” entitled “The Procurator Fiscal: His Historical Evolution.” 4 Paton, ed. Report on the Laing mss, 118. 5 Reid, “Origins of the procurator fiscal,” 154.
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Appointment
The source of a fiscal’s commission varied with the type of court in which he acted. Commissioners likewise varied from local noblemen, in baron and regality courts, to town council and university rectors.12 When John McGoun,
6 Littlejohn, Sheriff Court of Aberdeenshire, xlv; Reid, “Origins of the procurator fiscal,” 156. 7 nrs, Papers of the Sinclair Family of Freswick, Caithness, GD136/417/6. Often the same man was fiscal in both the sheriff and jp court: Whetstone, Scottish County Government, 32. 8 On whom, see above, page 228. 9 Robert Chambers, Traditions of Edinburgh (Edinburgh: W. & R. Chambers, 1912), 153. 10 Sir George Mackenzie, The Laws and Customs of Scotland in Matters Criminal, ed. Robinson, 303 (title 12.4). See further below, page 327. 11 rps 1700/10/234, Act for preventing wrongous imprisonments and against undue delayes in tryals. See J. Irvine Smith, “Criminal Procedure,” in Lord Normand, ed. Introduction to Scottish Legal History (Edinburgh: Stair Society, 1958), 436–7. 12 The right of appointment is discussed briefly in Finlay, “Pettyfoggers, regulation and local courts,” 60.
13 nrs, Leith-Buchanan papers, GD47/481. 14 nrs, Stewartry of Menteith, court book, RH11/54/7, fol. 251r. 15 James Chrystie, Hugh Crawford, John Allan, John Robertson, John Buchanan, William Weir, Thomas McFie, John Fogo, Robert Barclay and Alexander Wotherspoon all unsuccessfully stood against Wardrop. Information in this paragraph is drawn from Glasgow tcm. 16 See in Perth, the appointment of Patrick Miller, 26 Aug. 1754: pkca, Perth tcm, PE1/1/1. In Dundee, the appointment of William Chalmers, 24 Jul. 1766: da, Dundee tcm, vol. 10. There are other examples. 17 E.g. sba, D44/1/2, 2 Oct. 1752, 2 Mar. 1753 (vacancy due to the death of the incumbent), 11 Oct. 1754.
As it is now probable that no change will take place in the situation of sheriff clerk Mr Scott assures Mr Roger he will make no change in that of procurator fiscal.24
18 elca, Dunbar tcm, DUN/4/1/1/2, 14 May 1733. 19 nrs, Sheriff court of Hamilton, SC37/2/25, 24 Apr. 1787. 20 The Regality Club (3rd ser., Glasgow, 1899), iii, 84. 21 hac, Inverness tcm, BI/1/1/11, fol. 299. 22 nrs, Sheriff court book of Banff, SC2/1/12, 22 Jul. 1754. 23 Ibid., entry dated 22 Feb 1757. 24 sba, SC/S/12/19/3. Text expanded. Scott was appointed on 16 Dec. 1799, as successor to Andrew Plummer who was appointed in 1785.
Having been fiscal since at least 1784, Rodger was no doubt relieved to have survived another change of sheriff, although the note hints that he may have had his eye on the sheriff-clerkship. Scott lived to regret his decision, later describing Rodger as “a stupid pudding-headed short-houghd bothering body [who] perpetually lets the public cases slip through his fingers.”25 Henry Cockburn thought the system of appointment of fiscals by sheriffs as “pecu- liarly absurd, even where they appoint right men.”26 In his view, sheriff court fiscals should have been direct crown appointments.27 In practice, fiscals in sheriff courts often managed to retain office for years and this was true both before and after the reforms to heritable jurisdictions that came into effect in 1748. John Craw, for example, was fiscal in the sheriff court of Berwickshire between 1716 and 1733.28 His successor in office, Alexander Hume, continued as fiscal until January 1749. Craw served under successive earls of Marchmont, as titular sheriffs principal, and various advo- cates who presided as sheriffs-depute. In Stonehaven, Robert Burnes was appointed fiscal in 1753 and renewed in office by subsequent sheriffs-depute of Kincardine until he himself was appointed sheriff substitute in 1790 when he was replaced as fiscal by John Milne.29 Aside from vulnerability due to changes in judicial office, fiscals were natu- rally subject to removal in the event of poor performance. The town council of Dunfermline dismissed Alexander Richardson from office as fiscal in 1751 because, “oweing mostly to his old age”, he had long been very remiss in carry- ing out his duties.30 In 1766, Dumfries council “exauctorated”, that is removed the authority of, its fiscal, John Maxwell, because the peace of the town had “been of late greatly affected by [his] inattention and negligence.”31 This may have been more perception than substance: what seems to have prompted the magistrates’ decision was Maxwell’s temerity in relocating his family from the town to the countryside. In Linlithgow in 1802, George Cunningham’s removal
25 Herbert J.C. Grierson, ed. The Letters of Sir Walter Scott (12 vols, London: Constable, 1932–1937), iv, 371. 26 Cockburn, Letters, 446. 27 Sheriffs appointed fiscals “at pleasure” until 1907 when the lord advocate was vested with the power of appointment: Sheriff Courts (Scotland) Act 1907 (c. 51), s.22; the operative provision is now the Sheriff Courts and Legal Officers (Scotland) Act 1927 (c.35), s1(2). 28 nrs, Sheriff court of Berwickshire, SC60/2/1. 29 nrs, Sheriff court of Kincardine, SC5/1/7, 30 Oct. 1753; 4 Sep. 1762; 1 Sep. 1777; 14 Jun. 1790. The entries are incomplete, since renewals do not appear in 1767, 1780 or 1783; but there is no evidence of any other fiscal during the period. 30 nrs, Dunfermline tcm, B20/13/8, fol. 336. 31 dac, Dumfries tcm, A2/18, 1 Dec. 1766.
32 nrs, Linlithgow tcm, B48/9/14, fol. 342. 33 Ibid., fol. 335. 34 nrs, Regality of Dunfermline court book, RH11/27/14, fols. 21r-v. 35 Ibid., fols. 127r-v. 36 nrs, Montrose correspondence, GD220/5/1731/8a, 10. 37 The reduction can be found in ibid, GD220/1/H/8/1/4. The previous bailie had been com- missioned by Archibald McAuley of Ardincaple, whose right the duke had successfully overturned.
the procurator fiscall must produce his commission which must be read, and then all the oaths must be administrat to him by the Baillie, And thereafter the procurator fiscall must give in to the Clerk the roll of all the vassals who are to answer to the regality court, and crave that the Roll may be called, which must be done and the clerk must mark who are absent.38
Those absent were to be fined and the fines paid to the fiscal. Both the bailie and the fiscal were then to attend the next quarter session of the justice of the peace court in Dumbarton, to be held on the first Tuesday in August, and take all the requisite oaths once again. They were also to visit the regality court’s previous clerk and demand from him the court books. If he failed to deliver them, the fiscal was to raise a complaint against him. Not only did Graham provide the text of the libel to be included in the complaint, but he included full instruc- tions on what to do if the former clerk subsequently failed to compear in court. According to the duke’s Edinburgh agent, “some knowing active man” should be found locally to take on the office of fiscal. The man chosen was David Hutchison, a writer in Dumbarton who was aged only about twenty- three.39 The previous bailie and his clerk did not give up the court roll and purported to hold a session of the regality court in September which Hutchison attended.40 He asserted, in the name of the queen and the new lord of regality, the right of Mungo Graeme of Gorthy to be bailie under a commission from the duke of Montrose. He then formally protested against the former bailie’s unlawful proceedings. All of this activity was designed to ensure that future judgments of the new bailie would not be invalidated on procedural grounds if appealed to Edinburgh. Perhaps for the same reason, James Graham continued to advise the fiscal in the regality court, although it was very rare to find advocates taking on this role in other franchise jurisdictions. In 1722, for example, in a case of robbery, Graham expressed his opinion that
the locus delicti yields a preference to the locus originis especially where the criminall is in custody of the Judge of that Jurisdiction where the crime is committed.
38 Ibid, GD220/5/1711/21. Contractions expanded. 39 Finlay, ed. arnp, i, no. 479. 40 nrs, Montrose correspondence, GD220/6/492/2.
He went on to give advice on the taking of evidence if “the Fiscall insists by himself” (that is, without a private prosecutor).41 The only fiscals whose appointments featured in a central register were those appointed by the crown to commissary courts.42 Thus James Balfour ws was appointed under the privy seal to the post of procurator fiscal in the com- missary court of Edinburgh in 1779, an office he retained until his resignation in 1805 when, under the same procedure, Patrick Wishart ws succeeded him.43 More curious is the crown appointment of John Stewart, a Dunkeld writer, as fiscal in the commissariot of Dunblane in June 1701.44 Stewart was appointed following the death of the previous office-holder, Patrick Robertson. It was an interim appointment, to be held only during the minority of Robertson’s eldest son, Robert, who was, in the same grant, named fiscal for life.45 As Robert was a minor, aptitude and experience clearly counted for nothing: his office had been bought and paid for. Aside from Stewart, the appointment of fiscals by the crown in the eigh- teenth century, from the evidence of the privy seal register, seems to have been restricted to the commissariot of Edinburgh. Given that there were four com- missaries in Edinburgh, each holding the same powers, direct crown appoint- ment of the fiscals in their court sensibly avoided any dispute amongst the judges on the choice of candidate. These fiscals, once appointed, could make their own private agreements for holding the office jointly which the crown, for a fee, was prepared to rubber stamp.46 Elsewhere, appointments in com- missary courts were essentially local. The experienced writer James Hope, for instance, was commissioned in 1774 as fiscal by John Robertson, commissary principal of the commissariot of Peebles, and given the power to exercise the office “as fully and freely in all respects as any procurator fiscal in Scotland.”47 Unlike the Edinburgh fiscals, who held office for life, Hope held office only during pleasure.
41 Ibid., GD220/5/1731/2b. 42 The crown’s patronage in this area was inherited from Scotland’s bishops as a result of the abolition of episcopacy. It created some uncertainty, and litigation, after 1690: alsp, Forbes Collection, vol. 6, The Petition of Sir Walter Seton, n.d., fols. 6333–8. 43 nrs, Privy seal register, PS3/10, fols. 447–8; PS3/13, fol. 108. 44 Ibid., PS3/6, fol. 6. 45 Stewart is possibly the Perthshire man admitted as a notary on 25 Jan. 1688: nrs, NP2/16. 46 For example, David Hope ws resigned the office in 1716 and was immediately reappointed jointly with Alexander Stevenson ws, for the lifetime of the survivor: nrs, Privy seal register, PS3/7, fols. 193–4. A financial arrangement in Hope’s favour is likely to have prompted this. 47 nrs, Peebles town council papers, B58/19/29.
As a matter of law, the right to appoint fiscals had transferred to the crown on the abolition of episcopacy and whether it was then devolved to judges in the local commissary courts depended on the precise terms of their commis- sions. James Bissat, for example, was appointed in Dunkeld in 1739 with power “to nominate and appoint Deputys and all members of Court (Clerks only excepted) for whom he shall be answerable.”48 In 1728 it was asserted by Charles Areskine “that few of the Procurator-fiscals of the Commissariot court in Scotland held their Office for life.”49 By this, he seems to have been referring to commissary courts other than Edinburgh and it seems that by then most fis- cals in the commissary courts were directly appointed locally by the judge.
Authority
Assuming that his constitution was properly recorded, and that he had taken any necessary public oaths, what authority did the fiscal have? This again depended on where and by whom he had been commissioned. A fiscal could only bring actions competent in the court of the judge who had commissioned him. He had no general right to bring an action on behalf of the crown: such a right was reserved exclusively to the lord advocate (and, originally, the lord treasurer).50 Should a fiscal attempt to bring an action that was incompetent in an inferior court, then, assuming the judge did not decline to hear it, the fiscal would simply lack standing in the Court of Session if the matter were advo- cated there.51 Although it was sometimes said that the fiscal was the equivalent, in the inferior courts, of the lord advocate in the central criminal court, this was not entirely accurate.52 The fiscal’s role was circumscribed. The lord justice clerk, Lord Milton, described the office in 1748 to the secretary for the Northern Department, the duke of Newcastle, as follows:
48 nrs, Privy seal register, PS3/8, fol. 199. 49 alsp, Miscellaneous collection, ser. 7, vol. 1727–8, no. 187, Information for David Erskine, Lyon clerk and son to the Late Lord Lyon against Alexander Brodie of Brodie, Lyon King of Arms, 27 Jun. 1728, pp. 7–8. 50 For the historical background, see Irvine Smith, ed. Selected Justiciary Cases 1624–1650, i, Introduction, esp. v–xi. 51 See the argument by John MacLaurin, alsp, Arniston collection, vol. 85, no. 3, Information for James Wallace of Caversbank, Defender against William M’Kechnie Weaver in Paisley, etc, 7 Mar. 1766, pp. 5–6. 52 Bankton, Inst., iv.3.30.
there is an officer in the sheriffs court, called Procurator Fiscal, whose office is of the same nature in that court, as that of his Majestys Advocate in the Court of Justiciary; and all Criminal Tryalls, whither by Jury or by Summary Complaint, must be either at his instance or suite, or with his concourse, where there is a private party who prosecutes. This officer is named by the sheriff, and has no salary, only private parties pay him a trifling fee for his concourse; and the sheriffs commonly give him as well as the sheriff clerk, some part of the Fines (which by the terms of these courts are all made payable to him).53
The concurrence of the fiscal to any prosecution, as was the case with the lord advocate, was given as a matter of course, provided his fee was paid.54 Their offices, similar “in nature”, were not quite identical because the fiscal was lim- ited to bringing criminal actions competent to his own court. In terms of status, as Robert Blair put it in the case of Kennedy v Gray in 1767:
The Law presumes that his Majesties advocate as indeed has generally been the case, is a person whose Character, Rank and Abilities render him fit for discharging so great a trust. But the Law has formed no such presumption in favours of every procurator fiscal….55
Lord Milton having picked out the sheriff court, it is worth adding that while the sheriff might select and commission the fiscal of his court he had no simi- lar right to select the sheriff clerk unless, prior to 1748, this was specified in the charter or grant of office of a heritable title holder.56 The sheriff-clerkship was normally purchased from the incumbent with the approval of the relevant sec- retary of state, by virtue of his custody of the signet. When the office of secre- tary was abolished, it was the preserve of the keeper of the signet to arrange the filling of these offices.57 Approval was given in return for a fee, which was, in each case, individually negotiated. Indeed, the relative freedom of inferior judges to commission their own fiscal is another sharp contrast to the office of
53 nrs, State Papers of Scotland, ser. ii, RH2/4/368, fol. 244r. 54 On concurrence, see Finlay, “Advocacy, patronage and character,” 97. 55 nrs, High Court of Justiciary, books of adjournal, JC3/35, 2 Feb. 1767. Text expanded. The status of fiscals is discussed below. 56 See sl, ws Society Sederunt book 1701–1714, fol. 144. The commission in 1705 in favour of Sir Gilbert Elliot, advocate, as keeper of the signet, specified a share of profits arising from signet dues and “by the admission of writers to the signet, shirreff clerks and clerks to the peace.” See also John Duke of Athole & ors v The Earl of Eglinton, 17 Jul. 1705, Mor. 13117. 57 nls Minto papers, ms 11033, fols. 96–104.
58 Finlay, “Pettyfoggers, regulation and local courts,” 60. 59 nrs, Privy seal register, PS3/8, fol. 479; nls, Saltoun papers, ms 16675, fol. 157. 60 A brief discussion is offered in Finlay, Community of the College, 209. Some of the cases are reported in Mor. sub num. “Public Offices.” 61 nls, Saltoun papers, ms 16675, fol. 161; for Buchanan, see Finlay, ed. arnp, i, no. 777. 62 gca, TD219/5/45. Smith was admitted to the Faculty on 1 Apr. 1766: rfpg, Sederunt book 1761–1796, fol. 20. For an example of an appeal to patronage in regard to the office of fiscal in Glasgow’s commissary court in 1751, see nls, Saltoun papers, ms 16675, fol. 85. 63 eca, Edinburgh tcm, SL1/1/48, fol. 151.
Salary
Unlike what appears to have been the case with fiscals in franchise and com- missary courts, who relied solely on fees for granting concurrence and a share of fines (known as “sentence money”), fiscals in some burghs received sala- ries.64 Edinburgh provides a well-documented example. The funds for the sal- ary were sourced from the income the council derived through sentence money and this meant that, if fines were insufficient, the salary could not always be paid every year. In 1710 the council made it clear that the town was not to be burdened directly by the salary of fiscals or clerks of court, whatever any earlier enactments might have said.65 In that particular year, fines arising from “immoralities” were insufficient to pay the fiscal’s salary and he had to wait until 1711 for payment of what was owed. The same fiscal, Samuel Gray, had had to petition for payment in 1709, receiving £20 sterling from the town chamberlain “for his bygone services.”66 The normal salary was twenty merks per annum.67 Gray was succeeded in 1715 by two joint fiscals, James Russell and Alexander Home, who received £20 sterling equally between them, although they negoti- ated an exemption from certain annual payments, such as seat rent in the kirk.68 Russell became sole fiscal in 1717, when Home was appointed clerk of south Leith.69 He was paid two years’ arrears of salary in 1719 and continued to receive £10 sterling per annum, until this was doubled in 1723 in recognition of the “great care pains and diligence” he had taken.70 A year later, after he died, the original salary was reinstated when he was replaced by two joint succes- sors.71 It was doubled again in 1728, in respect of “the extraordinary pains and attendance” the joint fiscals were frequently put to in their offices.72 Evidently they had some administrative support. George Lindsay, the joint depute town
64 In other burghs, such as Ayr and Selkirk, no salary is mentioned. In Irvine, there was no salary but the fiscal received a fifth of the modified fines: nrs, B37/12/5, fol. 219. Data on fiscals’ income does not seem to have been gathered centrally until the nineteenth cen- tury: Whetstone, Scottish County Government, 21, 127, n. 150. On sentence money, see Anon., “A procurator fiscal,” 25. It was absolished in the sheriff courts in 1748. 65 eca, Edinburgh tcm, SL1/1/39, fol. 1036. 66 Ibid., SL1/1/39, fol. 417. 67 Ibid., SL1/1/40, fol. 307; SL1/1/41, fol. 317. A merk was two-thirds of a pound Scots. 68 Ibid., SL1/1/42, fol. 49; SL1/1/43, fol. 172; SL1/1/44, fol. 159. 69 E.g. eca, SL1/1/123, fol. 292; SL1/1/136, fol. 371. 70 Ibid., SL1/1/47, fol. 46; SL1/1/50, fol. 124. 71 Ibid., SL1/1/50, fol. 275. 72 Ibid., SL1/1/51, fols. 575–6.
employed in writing on all complaints at the instance of the procurator fiscalls and all precognitions which did concern the city without fee or reward.
A gratuity of 20 guineas was paid to him for his past services. Edinburgh continued with two fiscals until 1748, when the death of Robert Inglis led to the appointment of his colleague, Robert Gray, as sole fiscal with entitlement to half the annual salary annexed to the office plus the normal casualties.74 Gray held the office alone until he resigned in 1780 to be replaced by a sole successor, William Sprott.75 On Sprott’s resignation, in October 1807, the council approved new regulations for the office of fiscal which made provi- sion for both the continuing payment of a salary and for an equal share (with the clerks of court) of one third of the sentence money in the inferior courts.76 The regulations stipulated that while the fiscal “cannot be compelled to give his instance, he cannot refuse his concourse” to any private party bringing an action—or what was referred to as “the private business (if it can be so called) of the community.”77 The fiscal was entitled to charge 2 s 6d each time he gave his concurrence to a private prosecution. Outside Edinburgh, the salary of the average burgh fiscal was modest. The town of Dunbar paid Archibald Higgins a salary of only £10 Scots per annum.78 This may explain why there was no competition for his office, particularly because the amount of court business would have been fairly small. According to the table of fees set out in November 1733, Higgins was entitled to twelve shillings each time he gave his formal concurrence to a process and he received the same amount for each appearance on a court day, except the day the action was first called.79 In Linlithgow in 1764 the fiscal, John Kellie, sent in an account for one pound sterling for drawing libels against various defendants which the town council,
73 Ibid., SL1/1/59, fols. 107, 119–20. 74 Ibid., SL1/1/67, fol. 122. 75 Ibid., SL1/1/99, fols. 219–20. 76 Ibid., SL1/1/150, fols. 8–10. 77 Ibid., SL1/1/149, fol. 358; SL1/1/150, fol. 4. 78 elca, Dunbar tcm, DUN/2/1/1/4, 14 May 1733. 79 Ibid, entry dated 30 Nov. 1733.
“recollecting his worldly circumstances”, ordered the treasurer to pay with the proviso that no similar accounts would be paid in future.80 Kellie’s salary was only £20 Scots, although it was increased to £50 Scots in 1767 (a rate signifi- cantly in excess of the £2 10s sterling which Glasgow’s fiscal received).81 The increase, however, was specific to Kellie, “an Old Magistrate and formerly a Man of Character & Reputation in the town”, and was not to be a precedent for others.82 Indeed, it reverted to £20 Scots after his death in 1771.83 That the income of the office was insufficient may be seen from the fact that Kellie’s successor, Thomas Dundas, moved away from the burgh in 1773.84 By 1792, the office had “long been vacant” and the council needed to renew it, appointing George Cunningham with the usual salary.85 Town councils were in a powerful bargaining position and some men were prepared to work as fiscal without salary. In 1771, for example, Dunfermline town council appointed James Beveridge as fiscal in the burgh court “without fiscal fee or salary from the Town as formerly paid.”86 Moreover he was only to be permitted such share of the sentence money as the magistrates judged proper. In fact, it was not unusual for fiscals to receive only sentence money, their share of which varied significantly from place to place. At Inverness in 1759, the writer Duncan Grant was to receive a half share of whatever fines the magis- trates allowed the officers of court, with the other half to be shared between the town clerk and burgh officers.87 Elsewhere, the fiscal might receive a third share or possibly only a fifth or a sixth. Councils did, on the other hand, occasionally make one-off payments to fis- cals, even to men they had not appointed. In 1787 Edinburgh town council paid half of an account submitted to it by William Scott, fiscal in the sheriff court, in respect of “jailors fees” for prisoners in the Tolbooth who had been sent there for illegally returning from banishment.88 The payment, however, was not to
80 Nrs, Linlithgow tcm, B48/9/13, fol. 21. 81 E.g. gca, C1/1/33, fol. 512. In 1723 Glasgow paid its fiscal £30 Scots with £4 Scots to his servant; in 1764 the respective figures were £2 10s and 6 s 8d: ibid., C1/1/26, fol. 75, C1/1/33, fol. 205. In 1707 the value of the old Scots currency was fixed at £12 Scots to the £ sterling. 82 Nrs, Linlithgow tcm, B48/9/13 fol. 120. 83 Ibid., B48/9/13, fol. 211 (succeeded by Thomas Dundas); also fol. 262 (Walter Forrester). 84 Ibid., B48/8/19, entry dated 6 Nov. 1773. 85 Ibid., B48/9/14, fol. 169. It is not clear what happened to Walter Forrester, who succeeded Dundas in 1773. 86 Nrs, Dunfermline tcm, B20/13/11, 5 Jan. 1771. 87 Hac, Inverness tcm, BI/1/1/11, fol. 299. 88 Eca, Edinburgh tcm, SL1/1/109, fol. 235. See also a letter of 1790 concerning the aliment of prisoners, sent out by Scott, as fiscal, to local town clerks at the request of the Edinburgh
Expenses
Fiscals in the sheriff court were paid expenses from county revenues except in respect of crimes which the lord advocate directed to be tried by jury in the sheriff court. The treasury regulated the rate of these expenses in 1776, 1801 and again in 1812. A rate was fixed by which fiscals were paid for having petitions and warrants drawn in regard to such trials. This depended on the length of the document, provided there were thirty lines and no less than nine words to the line on each page.92 In 1801, the rate for taking precognitions, preliminary statements of evidence from witnesses, was specified as being
Twelve Shillings and Sixpence per Day of Eight Hours, and so in Proportion for a shorter time, together with such Expences as are unavoidably incurred by them, when it is necessary to take Precognition at a Distance from the place where the Business of the Sheriff Court is usually transacted.93
Individual accounts of expenses by fiscals, such as that submitted in 1811 by William Smith, fiscal in the justice of the peace court for the district of Kelso,
bailies whose assessors, before giving legal advice, wanted to know the customary local practices: nrs, GD128/4/5. 89 Ibid., SL1/1/129, fols. 85–6. 90 Nrs, Dunfermline tcm, B20/13/8, fol. 336. 91 Nrs, Burntisland tcm, B9/12/19, entry dated 4 Feb. 1784. 92 Nrs, Exchequer chamber regulations, GD1/570/55, Art. 2. 93 Ibid., Art. 7.
94 Nrs, Lord Advocate’s department, AD30/75. 95 Ibid., AD30/99/1. 96 Nrs, Letterbooks of Duncan Campbell, GD1/205/6, i, fol. 109. 97 Nrs, Lord Advocate’s department, AD30/99/4.
purposes.98 Rules issued by the barons of exchequer in 1776 made it clear that no expenses in exchequer would be permitted for taking precognitions or prosecuting crimes in the sheriff court.99
The Fiscal’s Role
Appointment as a fiscal did not mean an end to private practice as a procura- tor.100 As Duncan Campbell noted in 1788, after his appointment as fiscal in the sheriff court at Inveraray, he had “not given up business before the sheriff court of the country but…accepted an additional appointment in it.”101 However, while it remained open to a fiscal, as it was to the lord advocate, to be employed for the defence in a civil action, the bulk of his time was taken up in acting for prosecutors or civil pursuers. What is admittedly late evidence for this study, drawn from the sheriff court of Haddington in the year from 13 September 1821, shows that the fiscal, James MacNab, was not only the busiest procurator but the one who, proportionately, was most often mandated to pursue rather than defend an action.102 Only 6 of the 62 mandates he was given during that year (9.5 per cent) came from defend- ers and a similar proportion was maintained throughout the surviving record of mandates which runs until 1824.103 John Richardson, the next busiest procu- rator in 1821–2, was mandated to defend an action almost twenty per cent of the time (9 out of 47 mandates).104 This was a more typical proportion for the
98 See M.A. Crowther, “Crime, prosecution and mercy: English influence and Scottish prac- tice in the early nineteenth century” in S.J. Connolly, ed. Kingdoms United? Great Britain and Ireland since 1500 (Dublin: Four Courts Press, 1999), 234; David G. Barrie, Police in the Age of Improvement (Cullompton: Willan, 2012), 42–3. 99 Anon., “A procurator-fiscal—what he was, what he is, and what he will be,” 249. 100 Fiscals, if appointed full time, were eventually prevented from engaging in private prac- tice only by the Sheriff Court and Legal Officers (Scotland) Act 1927, s3. There was some opposition to this change at the time: Susan R. Moody and Jacqueline Tombs, ed. Prosecution in the Public Interest (Edinburgh: Scottish Academic Press, 1982), 21–2. 101 nrs, Letterbooks of Duncan Campbell, GD1/205/6, i, fol. 115. 102 nrs, “Record of mandates filed in actions before the sheriff court of Haddington;, SC40/15/1. The sample from the first year covers the period 13 Sep. 1821–8 Aug. 1822 and includes all the mandates in the first full year of the record (a total of 274). 103 The entire record, 678 mandates, shows that MacNab was employed in 150 cases in total, only 14 times by a defender (9.3 per cent). 104 It is worth noting that there is not an even number of mandates for pursuers and defend- ers. Many actions would have been undefended and a few were probably defended by the party litigant without employing a procurator. Of the 274 mandates recorded in 1821/2,
only 50 were made by defenders. Of the total of 678 mandates recorded (13 Sep. 1821–19 Aug. 1824), only 135 were made by defenders. Overall, Richardson was instructed to defend 20.9 per cent of the time. 105 nrs, Sheriff court of Stirling, register of procurators, SC67/26/1. 106 C.A. Malcolm, “The sheriff court: sixteenth century and later,” in Introduction to Scottish Legal History, ed. Lord Normand (Edinburgh: Stair Society, 1958), 360. 107 On the role of the fiscal in the early nineteenth century, and the relationship between fiscals and crown counsel, see Paul T. Riggs, “Prosecutors, juries, judges and punishment in early nineteenth-century Scotland,” Journal of Scottish Historical Studies 32 (2012), 166, esp. at 168–70; Moody and Tombs, Prosecution in the Public Interest, 18–20. 108 Erskine, Inst. I.4.4. 109 David Hume, Commentaries on the Law of Scotland Respecting Crimes (2 vols, 4th ed., Edinburgh: Bell & Bradfute, 1844), ii 63, 65. 110 nrs, High Court of Justiciary, books of adjournal, JC3/35, 2 Feb. 1767. The papers in this case, Duncan Kennedy v John Gray, appear in alsp, Dreghorn collection, vol. 29, no. 81. 111 On precognitions, see Irvine Smith, “Criminal procedure,” 429; M.A. Crowther, “The crimi- nal precognitions and their value for the historian” Scottish Archives 1 (1995): 75–84; and Ian Donnachie, “Profiling criminal offences: the evidence of the Lord Advocate’s papers during the first half of the nineteenth century,” ibid.: 85–92.
112 Anon., “A procurator-fiscal,” 248–9. 113 nrs, Commission on the Administration of Justice in Scotland, 1808–1810, COM14/4/23, 67. 114 alsp, Kilkerran collection, vol. 1, no. 30., Information for the Procurator-fiscal of the High Court of Admiralty against M’Kenzie of Corrie, 9 Feb. 1738. Forbes held office during life: nls, ms 7047, fol. 41r. 115 The circuit did not include Edinburgh, Haddington or Linlithgow. Cases from these places were sent to the High Court sitting in Edinburgh. 116 nrs, Sheriff court of Dumfries, diet books, SC15/2/11, 22 Jul. 1761. See 20 Geo. ii. c. 43, The Abolition of Heritable Jurisdictions (Scotland) Act 1747, s31. 117 The Porteous Roll contained the names of accused persons who were to be tried on circuit. See Hume, Crimes, ii, 26. Technically, it was discontinued in 1709 (8 Anne, c. 16). In practice the phrase “Porteous roll” was still used by sheriff clerks. See Irvine Smith, “Criminal procedure,” 429–30.
118 E.g. pkca, B59/38/3/13, John Davidson to Mr Miller, 14 Mar. 1791. The lord advocate effec- tively assumed the role of raising indictments under 8.Ann.c.8 when the former method of taking up dittay was revised. Prior to this, he was restricted to using criminal letters to raise prosecutions, while indictments were drawn on the basis of reports from commis- sioners for taking up ditty appointed under 21 Jac. vi, c.82, (1587): rps, 1587/7/67, Act for the furtherance and furthsetting of the criminall justice ower all the realme. 119 These are preserved in Hume, Crimes, ii, 535–7, alongside a form of an information and presentment. 120 Sir Walter Scott described this as highly unusual in Apr. 1826, W.E.K. Anderson, ed. The Journal of Sir Walter Scott (Edinburgh: Canongate, 1988), 152: “I have attended these circuits with tolerable regularity since 1792, and though there is seldom much of impor- tance to be done yet I never remember before the Porteous roll being quite blank.” An absence of informations is, however, quite common in eighteenth-century rural sheriffdoms. 121 For example, Sheriff court of Peebles, diet books, SC42/1/7, 22 Feb. 1764 (child murder); Scherrif court of Aberdeen, diet books, SC1/2/66, fol. 20, 22 Jul. 1784 (theft and child mur- der); Sheriff court of Tain, diet books, SC34/1/3, 22 Feb. 1790 (child murder). 122 nrs, Sheriff court of Kincardine, diet books, SC5/2/24, 22 Jul. 1762. 123 nrs, High court of Justiciary, books of adjournal, JC3/45, fols. 259–260.
If satisfied with a presentment, the sheriff would order it to be transmitted to Edinburgh “in the common form.”124 For the fiscal, this would generate inter- action with the crown agent who would consult on the case with the advocates- depute.125 While the lord advocate was ultimately responsible for prosecuting serious cases on the crown’s behalf, in practice, it was generally the crown agent, on advice from crown counsel, who determined whether or not to bring an indictment on the basis of the fiscal’s presentment. Sheriffs were free to make recommendations of their own based on the precognition and other evi- dence. Walter Scott, as sheriff-depute of Selkirk, did not shirk from making his views known to the crown agent when transmitting presentments.126 The sys- tem appears to have run smoothly but there was always the possibility of con- fusion. In 1788, for example, a presentment concerning a charge of theft against Roderick McLeod, a prisoner in Tain, could not be made because the precogni- tion had already been forwarded to the crown agent but not returned.127 The sheriff-depute assumed that criminal letters would be raised against McLeod but, without the precognition, the presentment was incompetent.
The Nature of Business
As noted earlier, the fiscal’s remit varied according to the jurisdiction in which he operated. The role of the fiscal of the ws Society was defined in 1731 as follows:
His office is to inform himself of misdemeanors [sic], to form complaints and to carry on prosecutions before the Keeper and Commissioners against such members as are guilty of malversations in their office, or transgress the laws of the Society, and the whole proceedings on such trials are regularly ingrosst in the books of the Society.128
The fiscal, in some ways, was the moral guardian of the Society and had a duty to protect its reputation and ensure that members adhered to the regulations.
124 E.g. nrs, Sheriff court of Tain, diet books, SC34/1/3, 22 Jul. 1791. 125 One of the most prominent crown agents of the eighteenth century was John Davidson of Stewartfield and Haltree ws. He should be distinguished from another ws, John Davidson of Whitehouse, who was clerk of justiciary earlier in the century. They were not related and their offices were quite distinct. 126 For example, sba, SC/S/12/19/1/7. 127 nrs, Sheriff court of Tain, diet books, SC34/1/3, 22 Feb. 1788. 128 sl, ws Society, Sederunt book 1714–1732, fol. 428.
Similarly, a town council would appoint a fiscal primarily to ensure that its own local laws were properly enforced in the courts held by its dean of gild or bailies. The regulations of the burgh court of Glasgow, printed in 1804, noted that the court took cognisance of those “inferior offences” that did not require jury trial under Scots law.129 Appended to them was an extract from Hume’s criminal treatise instructing the fiscal on various specific duties. This included what to do in dealing with suspicious deaths, and responding to escapes by prisoners.130 Generally, burgh fiscals spent their time pursuing those involved in neighbour- hood disputes, prosecuting acts of violence or infringements of the burgh’s jeal- ously-guarded trading privileges. In the first instance the fiscal was responsible for the local enforcement of both common law crimes—particularly breach of the peace—and statutory offences. Examples include prosecutions for uttering false coins, carrying firearms in breach of the relevant legislation (see Illustration 5), or selling meat from one’s own home in contravention of an act of council.131 In the regality of Kilmaronock in 1721 two men were even prosecuted for burying their wives in linen shrouds, contrary to statute.132 After the Jacobite uprising, it fell to fiscals to prosecute those wearing “plaid or Highland dress contrary to the statute.”133 The activities of the fiscal provide an interesting insight into everyday life. Assault, riot, unlawful assembly, vagrancy, uttering threats, infringement of building regulations and nuisance were all fairly routine matters. In the jp court at Haddington, the fiscal prosecuted an innkeeper for insulting travellers and refusing them admission.134 The prosecution of unfreemen caught trading in burghs was common. Men caught selling spirits using unlawful measures would also face the wrath of the fiscal.135 In 1727 an attempt to put on a stage play in Edinburgh without permission was prosecuted.136 Threats to the envi- ronment regularly fell within the fiscal’s notice. The removal of turf and the casting of dung into the streets of Inverurie was the subject of a criminal
129 nrs, Form of Process in the Dean of Guild Court, Glasgow, 1806, COM14/4/24, pp. 6–7. 130 Ibid., pp. 72–5. The text came from what was described as “Hume”s Commentaries on the Trial of Crimes, Vol. ii, page 439’, a reference to the 1800 Edinburgh printing of the 1797 first edition of the treatise. 131 pkca, B59/38/4/4; sca, B66/25/761/1-6; elca, Haddington tcm, HAD2/1/2/18, 21 Feb. 1781. 132 nrs, Bailiary of Carrick court book, RH11/14/1, fol. 117; for the legislation, see rps, 1706/10/461, Act for burying in woollen. 133 E.g. nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/31, 1 Apr. 1749; 18 May 1749; hac, Inverness sheriff court book, L/INV/SC/6/22/6/60. 134 nrs, Records of the jp s of East Lothian, JP2/2/4, fol. 328. 135 E.g. nrs, Sheriff court of Aberdeenshire, diet books, SC1/1/55, fol. 305. 136 eca, Edinburgh tcm, SL1/1/51, fol. 485.
Illustration 5 Opening page of an Information for the fiscal of Perth in 1757 against John Robertson for alleged infringement of the 1746 Act of Parliament for disarming the Highlands. The Information was signed by Andrew Pringle, advocate. Alsp, Arniston collection, vol. 41. Reproduced by permission of the Keeper of the Faculty of Advocates.
complaint in 1787.137 In Edinburgh, people were prosecuted for carrying away stones from the seashore at Newhaven because by damaging the wall they weakened the sea defences.138
137 nrs, B36/8, 13 Jun. 1787. Cf the prosecution of the baxters in Edinburgh for causing nui- sance by illegally disposing of dung: eca, Edinburgh tcm, vol. 111, fol. 207. 138 eca, Edinburgh tcm, vol. 71, fol. 216.
It is through the office of fiscal that we see most starkly the different rhythms of legal practice in rural and urban environments. In the country- side, as well as the occasional assault, the fiscal dealt with everything from infringement of the game laws and fishing out of season, to the theft of tur- nips (a fate suffered both by the earl of Haddington in his native county and Lord Ankerville at his Ross-shire estate).139 Poaching was taken seriously and much judicial effort was spent on those caught unlawfully killing “muir fowl, partridges, hairs, salmonds and others in forbidden time.”140 In Inveraray, the fiscal seems to have had a residual duty to deal with stray livestock.141 Stealing livestock was a particular danger. For the theft of sheep in Lewis, two men (for whom the charge had to be translated into Gaelic in court) were sentenced in 1789 to be taken from the Tolbooth with
a Rope round their Necks with Labells on their Breasts, having the words Sheep stealing in large characters inscribed on them, and to be led by the common executioner through the streets of the village of Stornoway, Goat-hill and Wayhead.142
They were then to be led to different places and receive a total of fifty lashes on their naked backs before being banished from the county of Ross. This mode of punishment was typical of any burgh in Scotland at the time. In urban centres, prostitution was rife and regularly the focus of prosecu- tion. Dundee had its own court for immoralities, held every Monday after- noon, at which the town’s constables were to “give account of any Immoralities they know.”143 In Haddington, the presence of a nearby camp of dragoons stimulated economic demand for the activities of women such as Agnes Blaik, who was twice convicted of “uncleanness” before being banished forever from the burgh in 1732 along with the “vicious strumpet”, Elizabeth Golight.144 Procurers and brothel-keepers were also prosecuted. Thomas Buchanan, alleged by the local fiscal to have kept “the greatest baudy house in Glasgow”, was colourfully described in 1750 as “a quarreller, fighter, curser, swearer,
139 nrs, B18/31/38/4; SC34/1/2 (entry dated 12 Nov. 1779). 140 sba, Selkirk burgh court, 1743, D47/63/45. Punctuation added. 141 nrs, Letterbooks of Duncan Campbell, GD1/205/6, i, fol. 160; ii, fol. 25. 142 nrs, Sheriff court of Nairn, court books, SC31/1/15, 21 Apr. 1789. 143 da, Dundee tcm, vol. 8A, 13 Nov. 1716. 144 elca, B30/11/1, fol. 1.
The petitioner, whose name is Margaret Burns, openly avowing herself to be a woman of infamous character, who has no other occupation than that of prostitute, has presumed, in her petition, to take merit to herself from being one of the higher order of women of that description; and to complain of injustice in the magistrates of this city in marking her out for punishment, while the town swarms with so many females of a lower rank, and more profligate manners than herself.146
The issue in question was whether the council had the power to banish her from the city for life. Burns, along with Katherine Reid and others, were the targets of a concerted campaign by the Edinburgh fiscal, William Sprott, who accused them of bringing misery to the inhabitants of Forresters’ Wynd.147 Their complaint against the sentence was frivolous because, for generations, magistrates had regularly imposed the penalty of banishment. Defence agents did like to make their presence felt. When John Maxwell, fiscal of the barony of the Gorbals near Glasgow, tried to have another bawdy- house keeper banished, the accused’s agent threatened to bring a bill of sus- pension to the High Court. This was premised, however, the not unintelligent proposition that the bailie’s jurisdiction to impose such a penalty had been removed in 1748.148
Promoting the Public Interest
The fiscal’s primary duty was to act in the public interest. Even the fiscal of the ws Society was referred to as a “public prosecutor.”149 This responsibility is reflected in the title “Procurator fiscall and publick calumniator” which was routinely used in the sheriffdom of Kincardine and is found elsewhere.150
145 nrs, Libel, John Wardrop, fiscal of Glasgow v Thomas Buchanan, 1750, CS235/G/2/212. 146 alsp, Miscellaneous collection, ser. iii, no. 19, Answers for William Sprott procurator-fiscal of the city of Edinburgh to the Petition of Miss Margaret Burns, 3 Dec. 1789, pp. 1–2. 147 nrs, Court of Session, Bill Chamber, CS271/43949, Gibson and Sprott v Reid, 1789. 148 gca, Glasgow burgh court, diet books, A2/1/2/4. 149 E.g. nrs, Court of Session, Bill Chamber, CS271/58625, Duplies for William Macpherson ws. 150 nrs, Stonehaven sheriff court, Register of admissions, deputations, etc., SC5/1/7. This should be understood as public accuser, rather than the more negative sense of the word
In general, a distinction was drawn between vindicta privata, or the personal interest of a private party to obtain compensation or redress for injury, and vindicta publica. The latter was the public interest in ensuring that any crimi- nal wrongdoer
be condemned to undergo the punishment which the crime may deserve with regard to the publick for breaking his majesties peace and laws, and injuring his subjects.151
The king’s procurator (that is, the lord advocate in the court of justiciary and circuit courts and the fiscal in the inferior courts) had an independent right to prosecute even if the victims of a crime refused to do so.152 In the normal case, however, the fiscal was obliged to disclose the name of his “informer”, that is, the private party with whom he had concurred in raising the action.153 Where that person had reason to fear retribution from the accused, caution (surety) in the form of lawburrows might be given.154 Further protection was offered by the rule that a fiscal could not collude with a defender to agree a fine if that prejudiced the victim’s right to pursue the wrong committed against him. According to Sir George Mackenzie of Rosehaugh, such collusive arrange- ments, not uncommon in his day, were set aside when the victim had been willing to prosecute but was outmanoeuvred by a fiscal.155 What amounted to a prosecution in the public interest was sometimes open to debate. In a defamation action in 1739, which originated before the
“calumniator” as one who defames or wrongfully accuses. See also Blair’s argument in Kennedy v Gray, cited above at note 110. 151 gul, Spec. Coll., William Forbes, “The Great Body of the Law of Scotland”, ms Gen 1250, fol. 867. 152 Forbes, ibid., fol. 868, cites the case of Patrick & James Deas, 2 Dec. 1696, in support of this proposition. A later case, with the same outcome, is found in nrs, Court of Session, Bill Chamber, CS271/50609, Simpson v Baird, 1748, a case of theft in Paisley. 153 James Wallace, The Sheriffdom of Clackmannan: A Sketch of its History (Edinburgh: J. Thin, 1890), 71. 154 Lawburrows (burrows comes from “borgh” or security) is the name of a decree or signet letters consequent upon one. In effect, a party swore that he or she “dreads bodily harm, injury and oppression” of another person, and the latter would be ordered to provide personal surety that the complainer and his property should be “harmless and skaithless” of him. The guarantor would compensate the suffering party should any injury then be proven to have been done in contravention of the lawburrows, and he himself would be entitled to recover his loss from the offending party. 155 Sir George Mackenzie, The Laws and Customs of Scotland in Matters Criminal, ed. Robinson, 18.1 (324).
here was no Breach of the Peace, no publick Offence which could entitle the Procurator Fiscal to prosecute, but allanerly [only] a private verbal Injury, which gives no Interest to the Procurator Fiscal.156
The verbal injury in question, however, had been an allegation of murder which had led to a man being arrested and detained in custody in Glasgow. Lord Minto, dealing with the case on a bill of suspension, saw no difficulty with the fiscal’s role, although he did modify the fine payable to the “fisque” from five pounds sterling to only one pound.157 A later case of verbal injury raised the question of how far the Court of Session had jurisdiction in criminal matters.158 An action concluding for dam- ages and expenses was competent in the civil court, it was argued, but only a “calumniator publicus…has a title to pursue for a fine, or other punishment.” Any attempt to seek a fine or palinode in the central civil court, it was argued, must fail. While the Court of Session did have “those powers essentially neces- sary in all courts [to impose punishments]…for explicating its Jurisdiction”, it was generally accepted that because its procedures did not include trial by jury it could not normally hear criminal matters without jeopardising the liberty of the subject.159
156 alsp, Hamilton-Gordon, 1st collection, vol. 31, no. 4, The Petition of Robert Allason Merchant in Gorbals, 25 Jan. 1739, p. 3. 157 William Forbes regarded the “fisk” as a synonym for “publicam vindictam”: gul, ms 1250, fol. 868. The word “fisk” was sometimes simply used as shorthand for “fiscal”: e.g. nrs, SC34/1/2, 15 Sep. 1774. See Mackenzie, Matters Criminal, ed. Robinson, 18.3 (325). 158 alsp, Arniston collection, vol. 76, no. 25, The Petition of Alexander Cunnyngham, one of the clerks to the signet, 22 Feb. 1765, p. 20. This petition was presented by John McLaurin, adv. (later Lord Dreghorn). It is worth noting that the Court of Session accepted a difference between the prosecutorial authority of the fiscal in the commissary court and that of fis- cals in other courts. In a case of verbal injury before the commissaries, the fiscal could not sue without the concurrence of party injured. 159 alsp, Arniston collection, vol. 61, no. 11, Information for Colonel John Scott of the Third Regiment of Guards, and others, etc., 6 Jul. 1761, p. 14. This was argued by James Montgomery (later hma and Chief Baron in the Court of Exchequer in Scotland).
Defending Public Authority
Another part of the fiscal’s role was to defend public authority. This not only included defending magistrates and judges, but also ensuring that those who held public office adhered to appropriate standards of conduct. A few exam- ples provide some idea of the types of case involved. In Edinburgh in 1755 two bailies, the clerk of their court, and the town’s fiscal, Robert Gray, were sued for damages for the alleged wrongful imprisonment of a merchant named James Yuill.160 It was Gray who had to marshal the defence against a charge of oppres- sive conduct. The town council of Dumfries in 1797, regarding it as their duty “to protect from insult and maltreatment the Magistrates of this burgh”, trans- mitted a complaint to the fiscal of the county so that a prosecution may be raised before the sheriff of a local merchant who had insulted one of the bai- lies.161 Three years later they instructed their fiscal to inquire into alleged “unbecoming & opprobrious language” used against the magistrates and coun- cil by a local shopkeeper.162 In Edinburgh in 1739 the fiscal prosecuted the gaoler of the Tolbooth prison, for “gross and supine negligence”, for which he was dismissed after less than a year in office.163 An interesting if slightly different example of the maintenance of public standards arose in 1768 when the Society of Ensigns failed to attend the king’s birthday celebrations held in Edinburgh.164 They had been allowed £5 by the council to prepare themselves for the occasion and the councillors, “for this piece of Disloyalty and injustifiable conduct”, ordered the fiscal to “prosecute” and seek repetition of the money. An area where public and private interests coalesced lay in the enforcing of attendance in the inferior courts by those who owed suit and presence there. The fiscal’s interest lay in income from fines for contumacy imposed upon the local landholders who were required to attend the court and act as jurors (an obligation traditionally inserted in the charters by which they held their lands).165 Contumacy also arose when a witness failed to appear to make a deposition. One illustration is the fine of £10 Scots given to John Sturrock in
160 eca, Edinburgh tcm, SL1/1/72 fol. 324. 161 dac, Dumfries tcm, B2/2, 19 Jun. 1797. 162 Ibid., entry dated 14 Apr. 1800. There are several similar cases earlier in the century. 163 eca, Edinburgh tcm, SL1/1/60 fols. 17, 223. This followed the escape in July of the con- demned prisoner James Ratcliffe: ibid., fol. 140. Ratcliffe was recaptured in Fife in Apr. 1740: ibid., fol. 317. 164 Ibid., SL1/1/84, fol. 131. 165 For example, alsp. Forbes Collection, vol. 6, Information [for] Thomas Mcgoun late pro- vost of Irwine [sic] Against the Procurator fiscal of the Regality of Kilvining [sic], n.d., Forbes
Arbroath for failing to depone as a witness against men accused of illegally gathering in the town’s churchyard, on Sunday 5 April 1730.166 The aim of the nefarious gathering had been to object to the preaching of a probationary minister. Non-appearance by defendants in the inferior courts was an occupational hazard for any fiscal. The eighteenth-century accused person might choose to ignore a local citation altogether and then seek to argue against any penalty imposed for contumacy by bringing a bill of suspension before the Court of Session. This suggests a mistrust of local justice and a fear of rigged and partial proceedings. All such a defendant needed was a cautioner, some person of sub- stance who would undertake if necessary to pay the fiscal’s expenses incurred in bringing an action for contumacy and then defending the bill of suspension. In 1734, for instance, after a process in the sheriff court of Fife, Thomas Miller, bailie of Kinghorn, stood as surety that James Mann would pay the fine of £60 Scots to the fiscal if his bill of suspension was declined.167 Mann’s fine was for contumacy; he had clearly bypassed the sheriff court proceedings, possibly in the belief that he would not receive a fair hearing.
Independence
As a prosecutor the fiscal, for much of the eighteenth century, could hardly be regarded in any sense as independent. Burgh fiscals, especially, were subject to direction by the town council and councillors regularly referred matters to them. In Haddington in 1762, for example, a council committee decided “to instruct and direct” the fiscal to bring an action against the wigmaker, William Dick, for “several encroachments” (that is, interferences with neighbouring property) after he had ignored “friendly advances” made to him.168 Dick, keen to avoid a lawsuit, was willing to make concessions and the council instructed the fiscal to suspend his action for two weeks pending negotiations. When these failed to yield result, the legal process was resumed and Dick ultimately submitted to the council’s terms—an example of the threat of prosecution being used to resolve a local building dispute.
Collection, vol 3, fol. 3077; Information for William Miln procurator-fiscal of the Baronie of Barrie against Alexander Robertson of Carnoustie, n.d., fol. 3565. 166 nrs, Papers of the Maule family. GD45/13/19. 167 nrs, Court of Session, Bill Chamber, CS271/1910, James Man (Mann) v Procurator fiscal of Fife, 1734. 168 elca, Haddington tcm, HAD2/1/2/17, 7 Jul., 29 Jul., 4 Aug. 1762.
As well as being appointed at the pleasure of the judge or council who com- missioned them, many fiscals drew their income from sentence money and therefore had a patrimonial interest in the actions they brought. Payment by results created the potential for conflict of interest and allegations of miscon- duct. The question of prosecutorial autonomy therefore related closely to the terms of the fiscal’s appointment, the source of his income and also to his per- sonal vulnerability, in the event of misconduct, to anyone he unfairly prose- cuted.169 This is manifest in the actions of oppression regularly brought against fiscals and also against clerks and inferior judges and sometimes all three together.170 The position of the writer Alan Ogill, who in June 1739 was appointed fiscal in the sheriff court of the upper ward of Lanark by George Sinclair of Woodhall, the sheriff-depute, is instructive. Ogill was to exercise the office according to law but only during Sinclair’s pleasure. One of his duties was to uplift crown rents in the sheriffdom and another was to act as sheriff substitute when required. As a busy advocate in Edinburgh, Sinclair had already appointed a regular substitute, John McQueen of Braxfield, who attended to court busi- ness in his absence. In cases where McQueen could not preside, because he was bringing an action at his own instance either personally or as factor for someone else, Ogill was given the authority to hear the case. If this did not put in doubt his independence, the following condition imposed by Sinclair cer- tainly did:
Providing always that the said Allan Ogill shall make just compt reckon- ing & payment to me of the whole profits and emolument to the said office belonging out of which he is to have deduction and allowance of his own share of the same.171
The temptation for fiscals, clerks and inferior judges to misuse their offices for financial gain was considerable.172 In 1738 James Cleland, fiscal of Linlithgow,
169 On prosecutorial autonomy in later theory, see Moody and Tombs, ed. Prosecution in the Public Interest, 15–16. 170 Eighteenth-century oppression cases have yet to be quantified or studied in depth. Many are political in nature. For the position in regard to the liability of fiscals for their prosecu- torial conduct, from the early nineteenth century, see Robert S. Shiels “The civil liability of the public prosecutor” Scots Law Times (2012), 209–12. 171 nrs, Act book of the sheriff court of Lanark, SC38/1/20. Contractions expanded. 172 The right of sheriffs-depute to a share in sentence money was removed by 20 Geo. ii. c. 43, The Abolition of Heritable Jurisdictions (Scotland) Act 1747, s. 43. Instead of it, they received an annual salary.
173 alsp, Kilkerran collection, vol. 6, no. 83, Petition and Answers for James Cleland Procurator fiscal of the Sheriff Court of Linlithgow, To the Petition of James Gilmour Merchant there, 17 Feb. 1738. 174 Ibid., The Petition of James Gilmuir Merchant in Linlithgow, 20 Jul. 1737, no. 83. 175 nrs, High Court of Justiciary, books of adjournal, JC3/45, fols. 961–982. 176 Notour adultery, as a criminal matter, had long ceased to be prosecuted and that explains in this case why the Lord Advocate also did not support a prosecution. 177 nrs, Stewartry of Menteith, court book 1722–33, RH11/54/7, fol. 26. 178 nrs, Sheriff court at Tain, diet books, SC34/1/2, 15 Sep. 1774. 179 Barclay was not an ageing practitioner but Ross-shire was a large county. He was admitted a procurator on 9 Jun. 1773 and made fiscal on 31 Aug. 1774, just a month before Munro: ibid., SC34/1/2.
Status
In social terms, fiscals generally had no higher status than any ordinary procu- rator of the court in which they served. Indeed, another procurator practising in the court might be authorised to act for the fiscal if he were absent on a court day.181 Nor were fiscals necessarily even experienced lawyers. This was sometimes due to necessity because in some cases there was virtually no com- petition for the office. It is evident from the oaths of allegiance to Queen Anne taken in the commissary court of Argyll, for example, that apart from the fiscal, Gilbert Eidington, there were only two other active procurators one of whom also bore the lowly designation of “messenger.”182 The level of knowledge and experience of fiscals in the sheriff courts in 1748 was not necessarily high and this was acknowledged in a memorial on behalf of the advocates who were appointed sheriffs-depute in that year. One of their queries is worth quoting in full:
When a criminall is to be tried before a shirriff court and the fiscal, as often happens to be the case, is not expert, may the shirriff direct the Drawing the Indictment and the manner the proof is to be led when yet he is to sit judge?183
An answer in the affirmative would, of course, potentially have had significant repercussions in terms of the impartiality of the sheriff as a judge. Experienced lawyers of high status had once taken on the role of fiscal in the inferior courts. In sixteenth-century Edinburgh, the advocate Alexander King, for example, was fiscal in the town’s bailie court in the early 1570s and, at the same time, another advocate, Henry Kinross, exercised the identical role in
180 nrs, Sheriff court of Cromarty, diet books, SC24/1/1, 22 Feb. 1793. 181 John Cameron, ed. The Justiciary Records of Argyll and the Isles 1664–1705 (Edinburgh: Stair Society, 1949), 198. 182 nrs, Commissary court of Argyllshire, CC2/12/2/2. 183 nls, Saltoun papers, ms 17537, fol. 112r. Punctuation added.
184 nrs, Court of session, register of acts and decrets, 1st ser., CS7/50, fol. 393r; CS7/54, fol. 289r and CS7/56, fol. 59v. 185 E.g. alsp, Pitfour collection, vol. 6, no. 28; Arniston collection, vol. 142, no. 22. 186 nls, Yester papers, ms 7046 fol. 41r. 187 slsp, The Petition of James Philp, Esq. Judge of the High Court of Admiralty of Scotland, 20 Jan. 1781, pp. 14–15. On the trial, see J. Irvine Smith, “The trial of Captain Green,” in Glasgow Tercentenary Essays, ed. R.G. Anderson et al. (Edinburgh: Avizandum Publishing, 2014), 186–216. 188 Higgins is missing from Grant, ed. Faculty of Advocates. He was admitted to the bar, as Alexander ‘Heggine’, on 6 Nov. 1683: nrs, Court of Session Sederunt books, 1/8, fol. 47r. 189 nrs, Admiralty court records, Extracts from the Record of commissions, etc, AC15/6, vol. A, fol. 41; Finlay, ed. arnp, i, no. 1283. 190 Guide to the National Archives of Scotland (Edinburgh: Stair Society, 1996), 131. 191 eca, Edinburgh Chamber of Commerce minute book, ED0005/1/1, fols. 239–41.
192 alsp, Arniston collection, vol. 84, no. 46, Answers for John Campbell, Writer in Stirling, to the Petition of Messieurs Haig, Daes, and Company, Merchants in Alloa, 21 Jul. 1768. This was despite legislation in 1681 reaffirming the status of the High Court of Admiralty which clearly prohibited bills of advocation or suspension from that court to the lords of session: rps, 1681/7/40, Act concerning the jurisdiction of the admiral court. 193 nrs, Fortrose tcm, B28/8/3, fols. 45, 63. 194 sac, Ayr tcm, B6/18/14, fol. 107, 183, 256. 195 Ibid., B6/18/7 (unpaginated). Another example is the council member David Hunter who served as fiscal in 1753 and 1755: ibid., B6/18/14, fols. 427, 576. 196 nrs, Inverurie tcm, B36/6/4, fols. 124v-125r.; B36/8, e.g. entries dated 15 Dec, 1756, 13 Jun. 1787. 197 nrs, Burntisland tcm, B9/12/17, fols. 169, 172, 183. 198 hac, Nairn tcm, BN/1/1/3, 27 Sep. 1756, 29 Sep. 1757, 29 Sep. 1758. 199 saul, Falkland tcm, B25/5/1, fols. 102, 107.
Baillies but to give his concurrence thereto.”200 This obliging attitude stemmed from disturbances following a shortage of meal in 1768, circumstances with which his predecessor had struggled to cope. Other councils also discovered drawbacks to using councillors as fiscals. Walter Keir, a boatman in Burntisland, for instance, was simply too active in his business and was soon replaced as fiscal in 1786 when “his necessary avoca- tions” kept him away from town.201 James Goodwillie, a smith, lasted less than a month as fiscal because the office quickly began to “hurt his business.”202 Land-labourers also acted as fiscal in Burntisland. One of them, James Wilson, informed the council in 1794 that unless he was paid a salary he would be obliged to resign; the council voted to pay him the sum of ten shillings sterling annually.203 The small burgh of Irvine in Ayrshire provides an interesting example because the burgh sometimes appointed lay fiscals who acted with the benefit of professional advice. There was no discernible pattern of appointment. From the end of the seventeenth century, fiscals were drawn from merchant council- lors as well as from the ranks of experienced writers, such as Moses Crawfurd. When he was re-elected fiscal in October 1691, the merchant Ninian Holmes acted specifically with the aid of the writer William Stevinson who was simul- taneously elected “assessor to the procurator fiscal.” Stevinson, from October 1692, served as fiscal in his own right but was later nominated again as assessor, this time to the merchant Edward Keir. When Keir was present he was to be merely his assessor but, in Keir’s absence, he was to “supply his place & office.”204 The quality of fiscal in franchise jurisdictions varied. In the regality court of Hamilton, the fiscal in the 1730s was John Hamilton of Fairholm ws. The few surviving legal arguments in the court book suggest he was a skilled criminal lawyer, although that was hardly the normal territory for a writer to the signet.205 The fiscal of the baronies of Kellie and Cuthlie in 1730, on the other hand, was a gardener called Robert Gordon.206 He had to employ a local writer
200 Ibid., fol. 81. Evidently, he would concur in any process of riot; suggesting that his prede- cessor had refused to do so against the council’s wishes. 201 nrs, Burntisland tcm B9/12/19, 17 Jun. 1786. 202 Ibid, entry dated 30 Jan. 1788. 203 Ibid, entry dated 23 Sep. 1794. 204 nrs, Irvine tcm, B37/12/5, fols. 22, 36, 93, 119, 170, 187, 241. This was short-lived because Stevinson, by then a councillor, was elected fiscal again in his own right in Oct. 1694. 205 nrs, Sheriff court of Lanark, diet books, SC37/50/1. Later fiscals in Hamilton were local lawyers of less elevated status; this an interesting consequence of the loss of direct noble patronage in appointments in the sheriff court after 1748. 206 nrs, Papers of the Maule family, GD45/13/19.
Professional Profile
For those with experience of legal practice, particularly those admitted as notaries, the office of fiscal could be a stepping-stone to the office of town clerk. Good examples come from Dumfries. John Aitken, in 1774, and John Armstrong, in 1802, both resigned the position of fiscal when elected as one of the town clerks.211 George Rodger, via the roles of councillor, treasurer and bai- lie, became town clerk of Selkirk in 1803.212 In Dunbar, Archibald Higgins became procurator fiscal in 1733 and was made town clerk, probably aged in his late 30s, in 1742.213 In between, he was a burgh councillor, treasurer and collec- tor of the cess. Robert Speid, more unusually, became town clerk of Dundee in 1717 only a couple of months after his appointment as fiscal.214 Evidence drawn from the admission register of notaries public suggests that the office of fiscal, at least in courts within areas of significant population, tended to go to mid-career lawyers rather than very young men. Speid was aged
207 nrs, Sheriff court of Lanark, SC38/1/31, 30 Nov. 1762. 208 nrs, Papers of the Gillanders Family of Highfield, GD427/275. The fiscal in the sheriff court would not have been so poorly qualified. In 1789, for example, the writer in Dingwall, John Mac Allan, was appointed fiscal by the sheriff substitute of Lewis, nrs, SC33/1/1, 4 Apr. 1789. 209 nrs, Lord Advocate’s department, AD56/170, 9 May 1865, J.M. Balfour to Stair Agnew. 210 Ibid., 11 May 1865, “Answers by Promoters of Bill to Communications addressed to the Lord Advocate.” 211 dac, Dumfries tcm, A2/18 (3 and 18 Jan. 1774); B2/2 (26 Apr. And 11 May 1802). 212 sba, Selkirk tcm, BS/1/9, 31 Mar. 1803. 213 Finlay, ed. arnp, ii, no. 871; elca, Dunbar tcm, DUN/2/1/1/4, entries dated 30 May 1733, 6 Dec. 1742. 214 Finlay, ed. arnp, i, no. 148.
215 Ibid., nos 229, 879 and 564 respectively. 216 nrs, Admission register of notaries public, NP2/15 (unpaginated), 2 May 1687; on Stronach, see nls, Deposit 175, box 38/2, Baron court book, entry dated 1 Aug. 1738. 217 Finlay, ed. arnp, i, no. 97. 218 sl, ws Society Sederunt book 1785–1805, fol. 40. Some writers to the signet managed court actions, others did not and made their living from conveyancing and other business.
James Udny was sheriff clerk of Kincardine, fiscal of Aberdeenshire and later sheriff substitute of Aberdeenshire in the periods 1727–37 and 1747–8.219 John Barclay, appointed fiscal in his court by the new sheriff-depute at Tain, Donald McLeod, in 1774, later became McLeod’s substitute although he had to wait more than fifteen years for the promotion.220 Throughout Scotland’s inferior courts, procurators did not specialise in criminal cases or any other area of law, and even fiscals engaged in civil litiga- tion as part of their practice. As generalists, however, procurators did have to interest themselves in criminal law. Estate inventories demonstrate that many lawyers, fiscals or not, owned copies of Sir George Mackenzie’s Matters Criminal (1678) and some possessed Alexander Bayne’s Institutions of the Criminal Law (1748) and his earlier notes on Mackenzie.221 Later, as well as Erskine’s Institute of the Law of Scotland (1773), many working libraries would also have contained copies of Hugo Arnot’s Celebrated Criminal Trials (1785) and Hume’s Commentaries on the Law of Scotland respecting Crimes (1797). Some contained copies of Regiam Majestatem (generally the 1774 reprint of the 1609 edition), an ancient text but one still cited.222
Conclusion
The procurators fiscal in the sheriff courts were significant figures in the local administration of justice in Scotland. The justice of the peace courts, with their lesser jurisdiction, were much less important courts and Henry Cockburn dismissed the fiscals in these courts in 1833 as “in reality little but names.”223 The discretion of county fiscals was wide but not unfettered and there is evi- dence in some cases that they were subject to direction by those who commis- sioned them. Like all court practitioners, their income largely depended on
219 Finlay, ed. arnp, i, no. 229. 220 nrs, Sheriff court of Ross-shire (at Tain), diet books, SC34/1/2, (31 Aug. 1774); SC34/1/4 (6 Jan. 1790). 221 Examples include Alexander Moir in Dunblane (d. 1724), the writer and notary John Malcolm of Grange (d. 1746), and Robert Gordon in Dumfries (d. 1789): nrs, Wills and Testaments, CC6/5/23/230-2; CC20/4/19/226, CC5/6/17/328-30. 222 A lengthy and interesting discussion of the history of Scottish criminal procedure, citing Regiam and Quoniam Attachiamenta, was presented in a pleading subscribed by Alexander Wight, Andrew Crosbie and Cosmo Gordon in 1765: alsp, Arniston collection, vol. 78, no. 29, Information for James Baillie, late schoolmaster in Dundee, etc, against The British Linen Company and His Majesty’s Advocate, 4 Feb. 1765. 223 See Whetstone, Scottish County Government, 19; Cockburn, Letters, 446.
224 nrs, “Observations on the Constitution of the Commissariot of Edinburgh”, COM14/4/16, 5–6. 225 rps, 1700/10/234, Act for preventing wrongous imprisonments and against undue delayes in tryals. For an interesting technical legal debate on lawful citation under the legislation, involving the Stonehaven fiscal James Thomson, see nrs, Stonehaven sheriff court, court and act book, SC5/1/6, 6 May 1718. On its application generally, see Hume, Crimes, ii.4. 226 nrs, Hamilton Regality court, SC37/50/1, 22 Aug. 1723. 227 alsp, Miscellaneous collection, ser. 17, vol. 1739–42, no. 76, Answers for John Barr Mason and Wright in Rutherglen, and William Spens Writer there, 16 Feb. 1739, p. 8. 228 Ibid., p. 4. Hence his remark about how little accuracy was used, quoted at the beginning of Chapter 4. 229 Hume, Crimes, i, 409, mentions the case of David Kennedy in 1722. 230 nrs, High Court of justiciary, books of adjournal, Petition of Thomas Barny and Mary Boyd, JC3/39, 30 June 1775.
outside the bounds of the burgh, the accused were liberated because of the inadequacy of the warrant used to imprison them which, though signed by one of the magistrates, was based on a petition drafted by Kibble. Fiscals who were over-assertive might easily run into trouble. David Rochead, fiscal in the jp court at Haddington, made what were deemed to be offensive remarks in court to some cavalrymen quartered in the town as he attempted to prosecute them in 1799 for fishing with nets in the River Tyne.231 While the justices praised the exemplary conduct of the cavalrymen, who had asked that the matter be dropped, they punished Rochead with suspension from office. Some fiscals held office for many years and developed great experience; many however, as Whetstone noted, held office only a few years.232 What effect longevity had on their decision-making is a matter of conjecture. Within limits, they had discretion in electing how to proceed with matters reported to them and in determining what information to pass on to the sheriff-depute or the crown agent. Careful management brought them respectability and sometimes promotion to town clerk or, like John Barclay in Cromarty, sheriff substitute.233 In a number of cases, fiscals certainly abused their role and acted oppres- sively. Most were honest and acted in good conscience. William Hunter, fiscal in the bailie court of Melrose, was quick to acknowledge that he had unwit- tingly misled an accused into believing that the bailie would assign a new court diet for summoning witnesses.234 When it turned out that the bailie had other ideas, and heard the prosecution witnesses directly, Hunter claimed that he would have said exactly the same thing “to my nearest Relations upon Earth”, adding ruefully that “the management of a Judge will disappoint many people.” He acknowledged that the fiscal, as a member of the court, owed it to the court and the public to act honestly and supported the bill of suspension the accused took to Edinburgh. This should be qualified by reference once again to the important argument of Robert Blair in 1767 in Kennedy v Gray. The case concerned whether a sheriff, whose powers were purely territorial, should have the authority to condemn a prisoner to transportation to the colonies. Blair paid great tribute to the sheriffs-depute, men of his own class and fellow advocates. “No set of inferior judges…in any country”, he argued, had “discharged their duty with greater
231 nrs, Justices of the Peace records, East Lothian, minute books, JP2/2/4, fols. 252, 269, 278 (there is an error in pagination in this volume, leading to duplication). 232 Whetstone, Scottish County Government, 19. 233 nrs, Sheriff court of Cromarty, diet books, SC24/1/1, 29 Jan. 1790. 234 alsp, Miscellaneous collection, ser. 17, vol. 1737–43, no. 31, The Petition of Mr. Adam Miln Minister At Melrose, 10 Feb. 1737.
that in any free state were ever committed to private persons, nothing less than the power of authorizing or putting a negative upon Criminal prosecutions, according as he shall see cause, or of deserting such actions, after they are brought without being subject to any restraint or control.
If this was idealistic, because political control was not always absent, it remains the case that, with a few exceptions, fiscals in eighteenth-century Scotland seem to have exercised their public office reasonably conscientiously.
235 nrs, High Court of Justiciary, books of adjournal, JC3/35, 2 Feb. 1767.
I have the pleasing recollection of having been sworn into office, in pres- ence of the lords of the First Division, by Sir Walter Scott, who, with his usual benignity, gave the young notary a warm shake of his hand, and wished professional success. john gabriel buchanan1
Notaries did not form a separate class of legal practitioner in Scotland and a man acting as a notary might also be a procurator in the inferior courts. Sometimes he combined his office with that of messenger although, as even the Lord Lyon acknowledged, the notary held an office “of greater Trust and Consequence than that of a Messenger.”2 The two offices were complemen- tary in some respects, particularly when there were debtors to be squeezed (as contemporaries would put it) and protests made against the dishonouring of bills. The Arts Notariatus, an anonymous text first published in 1740 with a second edition in 1762, was a popular work that would have been found on most prac- titioners’ bookshelves. It defined “the honest and lawful” business of the notary in Scotland under the following heads:
1. The giving, forming, and extending of instruments when required by parties. 2. The giving and extending of notorial [sic] copies of paper. 3. The subscribing of writs and securities for and at the request of persons who either cannot write themselves, or who can write, but by reason of sickness or indisposition, or other temporal impediment, are at the pres- ent time incapable.3
The functions of the office, important in practice, were recognised in various statutes and this meant there were unique tasks, in the drafting and authentication
1 2 3
1 [Buchanan], Reminiscences, 30. Buchanan was admitted notary on 7 Mar. 1815: nrs, Admission register of notaries public, NP2/40, fol. 39. 2 alsp, Elchies collection, vol. 15, no. 9, Answers for Alexander Brodie of Brodie Lord Lyon To the Bull of Suspension presented by James Thomson and Ors, 9 Jul. 1744, p. 2. 3 Ars Notariatus, or, The Art and Office of a Notary-Public, As the same is practised in Scotland (2nd ed., Edinburgh: Printed by A. Donaldson and J. Reid, 1762), 48.
© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004294943_012
4 5 6 7 8
4 See John Finlay, “The History of the Notary in Scotland,” in Handbuch zur Geschichte des Notariats der europäischen Traditionem, ed. Mathias Schmoeckel and W. Schuber (Baden Baden: Nomos, 2009), 393–428; ibid., arnp, i, 1–26; and below. On the earlier history of nota- ries, see John Durkan, “The early Scottish notary,” in The Renaissance and Reformation in Scotland, ed. Ian B. Cowan and Duncan Shaw (Edinburgh: Scottish Academic Press, 1983), 22–40; Lewis Ockrent, Land Rights: An Enquiry into the History of Registration for Publication in Scotland (Edinburgh: Hodge, 1942), 56–65. 5 James Steuart of Goodtrees, Dirleton’s Doubts and Questions in the Law of Scotland Resolved and Answered. By Sir James Steuart of Goodtrees, Late Lord Advocate for Their Majesties King William and Queen Mary, and Her Late Majesty Queen Anne (Edinburgh: Printed by James Watson, 1715), ii, 311; rps, 1579/10/33, Anent the inserting of witnesses in obligationis and writtis of importance. “Famous” simply meant “not infamous”, that is, not having been infamed by a court, on the basis of dishonesty or fraud, and rendered legally incompetent to carry out certain tasks. 6 Ars Notariatus, 337–8. Fotheringham and Scrimzeour v Watson (1623) Mor 16830; James Dalrymple of Stair, Institutions of the Law of Scotland, (2nd ed., Edinburgh: Heir of Andrew Anderson, 1693), 4.42.9. This is not to be confused with a later rule in Scots law in which loans, worth over £100 Scots, had to be proven by the writ or oath of the borrower. 7 Steuart, Dirleton’s Doubts Resolved and Answered, ii, 311; rps, 1584/5/12, That ministeris sall not be jugeis nor exerce ony uther ordinare office etc. 8 rps, 1587/7/39, Act for remeid of the falsset and ignorance of sindrie notaris.
Conveyancing
The notary was a particularly indispensible figure in the process of conveyanc- ing (the transfer of title to land). This involved the preparation of a written precept of sasine which was the authority for “symbolical” delivery. The notary would visit the land to be conveyed and nominate a local layman as a “bailie” for the transferor who would lift up some earth and stone and transfer them to another nominated layman, as procurator and attorney (ultimately representing the transferee). These men would be paid for their trouble and told to remem- ber all they had heard and seen of the ceremony.9 The notary would carefully delineate the substance of this ceremony when he wrote up an instrument of sasine as a record of the proceeding. From 1584, by statute, only a single notary was necessary to authenticate an instrument of sasine, provided some corrobo- ration existed, such as a charter or precept of sasine, as evidence that the hold- ing of land had been transferred.10 This instrument, bearing the notary’s subscription and his Latin motto, was then recorded in the public registers of sasines which had been instituted in 1617.11 The laymen involved might be recruited on the spot or might be clerks from the office taken along for the purpose. The daybook of the firm of Graham and Mitchell records a number of instances where the latter practice occurred. For example, an entry to the charge of the “Tannwork company” mentions the following in February 1800:
Trouble of a Notary and two of my clerks as witnesses taking infeftment on Disposition by James Sommervill to you of their property in Gorbals £0-12-6.12
In July 1769 James Smith, for going from Edinburgh to Fife and Perthshire with a procurator and bailie in order to take infeftment on two heritable bonds, was paid £10 from which sum he rewarded his assistants.13 These activities were labour intensive and the extent to which notaries
relied9 on conveyancing for their business is indicated by a drop in the admission 10 11 12 13
9 An interesting description of the process is found in [Buchanan], Reminiscences, 21–24. 10 rps, 1584/5/85, Ane act explanand the act of parliament maid of befoir anent subscriving and seling of wryittis of greit importance; Craig, Jus Feudale, 2.7.7. 11 rps 1617/5/30, Anent the reservatione of reversiones, seasingis and utheris writis. 12 gca, Records of Messrs Mitchells, Johnston & Co. solicitors, Glasgow, T-MJ/13, fol. 42. 13 nrs, “Accompt by David Steuart Monreiff Esqr concerning the affairs of the late William Steuart Esqr to Henry Scrymgeour 1770,” GD237/2/13.
The Central Register
In the eighteenth century, the admission register of notaries public provides the foundation of much of our knowledge about local legal practitioners. Not all writers or procurators were notaries. However, every one of the 3033 nota- ries admitted in the period 1700–1799 can at least be counted and identified.18 This contrasts with those whose record of admission as a procurator in a local court may now be lost and with those who described themselves “writer” but were subject to no formal admission process of any kind. 14 15 16 17 18
14 This data is based on an examination of nrs, Admission Registers of Notaries Public, NP2/36-NP2/49 and NP6/2. 15 For discussion see John Marshall, An Analysis to the Titles to Land Consolidation (Scotland) Act 1868 (Edinburgh: Bell & Bradfute, 1869), 1–3. 16 E.g. The Heritable Securities Act, 1847 (10 & 11 Vict. c.50); Crown Charters Act, 1847 (10 & 11 Vict. C. 51); Titles to Land (Scotland) Act, 1858 (21 & 22 Vict. c. 76). The consolidating statute was the Titles To Land Consolidation (Scotland) Act, 1868 (31 & 32 Vict. c. 101). 17 nls, Delvine papers, ms 1194, fol. 66. 18 See, generally, Finlay, ed. arnp.
Aside from a limited amount of biographical information, three key pieces of information can be gleaned from the admission register. The first is that Edinburgh, as a legal centre, was fundamentally important even in the context of the legal profession at a local level. Men routinely migrated to Edinburgh to undergo legal training.19 Some of them worked on Court of Session business through their training in the office of a ws or an agent licensed to practise there. The pattern of coming to Edinburgh to train as a writer and notary and then returning home is important because it ensured that the legal culture of Scotland’s supreme courts was understood and transmitted across the country. It is true that a large minority of writers trained locally and only went to Edinburgh for the process of admission as a notary public; however, it is diffi- cult to overstate the significance of having a large number trained in Edinburgh where they might pick up useful knowledge of Court of Session procedure. Second, the register underlines the fact that sons followed fathers at all levels of the legal profession. Anyone wishing to become a town clerk in Scotland, for example, had a great advantage if he was himself the son of the incumbent town clerk. He had access to materials for learning the profession; he had the financial backing to pursue an apprenticeship, and he could tap into his father’s network of local contacts to help ensure his own election by the town council when the time came. More than that, and not to be under-estimated, his status gave him the self-confidence to put himself forward. Thirdly, and directly opposed to what has just been said, it was also perfectly possible for new blood to enter the profes- sion. Many writers were able to emerge from non-legal families to work their way to success. The notary’s admission register proves that the law was not a closed world, at least at the level of the ars notaria (the notarial art). Gaining admission to the elevated ranks of court practice was a different story. Our subject is legal practice, so in this chapter we will focus primarily on two things: what might preclude notaries from entering practice and what they might do once in business.
Forrest v Gray
The realities of local legal practice are brought out nowhere more clearly than in the case of the Dunbar writer, James Gray. Gray petitioned the lords of ses- sion for admission as a notary public in 1765.20 His case is special because it represents the only occasion during the century where an objection to
19 20
19 See, further, ibid., i, 21–23. 20 Ibid., 4–5.
is a Person unqualified for the Office of Notary in terms of Law in so far as he is a Person of lame education for the said Office, does not understand the Latin Tongue and has not followed the Business of a Writer but has for these eleven or twelve years past, followed the Business of an illicite Trade or smuggler and has been concerned in sundry Exchequer suits and as such had writes issued from the court against him And therefore is in terms of Law a Person of tainted fame and reputation and unqualified in every Shape.21
Gray had certainly been a merchant in Eyemouth, another harbour town along the coast, and the councillors of Dunbar were well aware of the dam- age which the “pernicious and destructive practise of smugling” had caused the local economy.22 In response, he was was able to defend both the quality of his education and his good name. The son of a cooper in Dunbar, Gray had attended the local grammar school and had then trained under the town clerk, Archibald Higgins.23 His reason for seeking admission as a notary was that he himself had recently been appointed the new town clerk, in preference to Forrest, who had also trained under Higgins.24 For his part, Forrest had become a procurator in the local sheriff court in 1762, before becoming a notary the following year. Several points might be made about this case. First, it clearly stemmed from local rivalry. Despite claiming that he would welcome Gray “as a Brother” should his objection be overruled, Forrest was trying to get rid of a competitor for the office of town clerk. There is some suggestion that he had already blocked Gray’s admission to the local society of procurators. Gray argued that Forrest had no standing to prevent him becoming a notary public, because notaries were admitted centrally under royal authority. Forrest claimed to be bringing an actio popularis, acting, as a matter of right, in the public interest. 21 22 23 24
21 nrs, Admission register of notaries public, NP2/29 (unpaginated). 22 See the resolution against smuggling of 3 Aug. 1744: elca, Dunbar tcm, DUN/2/1/1/4. Gray’s status as a merchant of Eyemouth was mentioned when he was made a burgess of Dunbar on 8 Jul. 1765: ibid., DUN/2/1/1/5. 23 Higgins had been town clerk since 6 Dec. 1742: elca, Dunbar tcm, DUN/2/1/1/4. 24 Gray was appointed town clerk of Dunbar on 27 Mar. 1765, after Higgins demitted office in his favour: ibid., DUN/2/1/1/5.
It is worth adding that apart from Gray, Forrest, and Archibald Higgins, only two other Dunbar writers became notaries during the entire eighteenth century.25 Five is a small total, compared to the 158 writers from Glasgow, or the 132 from Aberdeen, or even the nine from Kirkwall admitted in the same period. Such business as Dunbar had, for a local notary, was obviously worth protecting. It is also relevant that Forrest is unlikely to have been favourite to succeed Higgins, having run foul of the town council, which, in September 1764, instructed the magistrates to prosecute him.26 Having been the collec- tor of the burgh’s cess (land tax) and the window tax for several years, Forrest had refused to deliver up the relevant accounts and papers when the coun- cillors called upon to do so. Secondly, Gray’s petition had been remitted to Lords Strichen and Kames who were to examine him and test his competence. This was a normal part of the admission process. Every petition was remitted to two judges for the pur- poses of examining the candidate; those nominated were normally the judge currently sitting for the week as lord ordinary in the Outer House and his immediate successor. In Gray’s case, the pleadings make it clear that the judges had remitted the matter to two writers to the signet.27 This was in conformity with a 1587 Act of Parliament relating to the admission of notaries, but it ran contrary to Acts of Sederunt in 1649 and 1691 by which the lords of session had tightened up the admission procedure.28 Therefore the practice was described in the pleading for Forrest as “a piece of Indulgence the Lords themselves have sometime gone into of late years” and he claimed that the writers selected were “generally two of the Candidate’s friends suggested by himself and who seldom choose to go accurately to work.” From the judges’ point of view, given that Strichen ostensibly undertook the duties of an examiner 183 times during his career, while Kames did so 130 times, handing this chore over to others must have been an attractive expedient.
25 26 27 28
25 Presumably Higgins was the son of another Dunbar writer called Archibald Higgins who became a notary in 1692 at the age of 24. Between 1690 and 1765 only five Dunbar writers became notaries, the fifth being the 36 year-old Andrew Pikeman in 1691. 26 elca, Dunbar tcm, DUN/2/1/1/5, 26 Sep. 1764. Gray was made collector of the cess on 5 Mar. 1766. 27 Henry Home (presumably a relative of Lord Kames) and Andrew Stuart. In theory, after 1684, all writers to the signet had to be notaries public: sl, Sederunt book 1671–1691, fol. 417. In practice, this was far from being the case, at least during the 18th century. 28 rps, 1587/7/89, Act for remeid of the falsset and ignorance of sindrie notaris; Acts of Sederunt 1553–1690, 62, 192; see also an earlier Act of Parliament in 1540, rps, 1540/12/18, Off elec- tioune of notaris.
The case highlights one of the two methods of training for the office of notary already identified. Gray and Forrest had trained in Dunbar, not in Edinburgh, and were amongst those notaries who came to Edinburgh only to be formally admitted to office. If Archibald Higgins had had a son or nephew to train, then it is likely that no dispute over his succession as town clerk would have arisen. Higgins, who became a notary in 1730, was himself the son of a local writer who had presumably trained him in the notarial arts.29 Such local dynasties of notaries were not uncommon. Nor was it unusual that neither Gray nor Forrest had a legal background. They were, respectively, the sons of a cooper and a cabinetmaker, both local to Dunbar. Despite the fairly common occurrence of sons following fathers in the legal profession generally, only about one in five notaries were the sons of writ- ers, clerks or writers to the signet. The office of notary was open to almost any- one with a reasonably good education and the ability to pay the costs of admission. These were estimated in 1740 to be more than £104 Scots (a sum exceeding 8 guineas sterling).30 This did not include incidental costs in setting up business which might include, for the sake of respectability and credibility, the purchase of a new suit of clothes.31 As noted, the eighteenth-century admission register suggests that entry to the office of notary was far from being the preserve of lawyers’ families. As well as the 20 per cent of notaries who were sons of lawyers or clerks (these being mostly local writers), about 20 per cent were the sons of merchants, and about 10 per cent were the sons of farmers or agricultural tenants. The sons of minis- ters of religion, surgeons and schoolmasters account for another 10 per cent, but the remainder were largely the sons of artisans, such as tailors, brewers, shoemakers, masons and manufacturers; or excisemen and shipmasters. This is the exactly type of background shared by Gray and Forrest in Dunbar. The final point about Gray’s case is that, while it seems to be unique in terms of the detail of the arguments offered on both sides, it suggests that the examination process for notaries was far from robust. It also raises serious questions about the extent to which any of the judges named as “examinators” of new notaries actually carried out that role personally. Following the reorga- nization of the Court of Session in 1808, it was always the two most junior lords ordinary who were charged with examining notaries. In the eighteenth cen- tury this burden was more widely shared across the bench, although due to the
29 30 31
29 Finlay, ed. arnp, i, no. 871. 30 Ars Notariatus, 30. 31 Finlay, “Lower branch of the legal profession,” 50–51.
a person who from his condition in life & character, and having never been regularly bred & educated to the business of a Writer and of a Procurator before the Courts {or of a Notary Public}, is improper to be trusted by the lieges in the management of business belonging to these professions.33
The words in brackets were added later, possibly when Angus put forward his petition for admission as a notary in November 1782. Hearing of this, the Faculty agreed to send a copy of their minute of 1 August to Laurence Hill ws in Edinburgh (agent for Glasgow town council) who was to lay it before the advocates Ilay Campbell and Robert Sinclair “to request their assistance to prevent his admission as Notary.”34 Campbell, not yet solicitor-general, had strong Glasgow connections, as did Sinclair, sheriff-depute of Lanarkshire. These machinations presumably succeeded because Angus was never admitted as a notary.
32 33 34
32 See Finlay, ed. arnp, i, 5–6. 33 rfpg, Sederunt book 1761–1796, fol. 97. 34 Ibid., fol. 110 (14 Nov. 1782).
Admission and Education
As the Gray case demonstrates, the eighteenth-century system of admission potentially fell short of the “exact cognition and tryall of the honestie and abili- ties” of candidates which had been demanded in the past.35 The tenor of sev- enteenth-century Acts of Sederunt suggests that admission had at times led to notaries displaying “ignorance and informallity.”36 The status of notary in the eighteenth century did not necessarily require training in matters of legal prac- tice or procedure. No apprenticeship was necessary nor was there any need to demonstrate knowledge of aspects of Scots law beyond what a notary public might be expected to know in terms of the juridical styles. The cost of gaining admission as a notary public was long unregulated. The position of clerk to the admission of notaries, an office within the College of Justice, was not particularly lucrative, despite the number of new notaries admitted each year (an average of 30 annually across the century, although this was spread very unevenly).37 In December 1761 (a year in which 33 notaries were admitted) the annual share of fees paid to the clerk were estimated to amount to £120.38 In 1770, in a representation made to the ws Society, the fee charged for admission was said to be about £10 sterling per notary, a sum regarded as too low for an office of such public trust.39 Only part of this sum was paid to the clerk and his deputes, and the clerk’s income was thought “too small a gratification” for the trouble taken in maintaining the register and drafting the warrants. The Society recommended to the clerk that fifteen guin- eas be charged for each notary to be admitted after 18 June 1770.40 This sub- stantial increase did not prevent continuing growth in the number of new notaries, although it may have influenced the rate of admission and probably put the office beyond the range of some potential applicants.41 For intending notaries, fees were not the only consideration. When the young writer James Gilkie, living on an pittance, decided to enter as a notary in
1757,35 he was advised by his friends “to make a Stretch, and dress better than he 36 37 38 39 40 41
35 nrs, Court of Session, books of sederunt, CS1/15, fol. 198r; Acts of Sederunt 1553–1790, 62. The process of admission is discussed in Finlay, ed. arnp, i, 4–10. 36 Acts of Sederunt 1553–790, 62, 192. 37 For admission rates, see Finlay, ed. arnp, i, 5–6, 26. 38 nls, Saltoun papers, ms 17538, fol. 103. 39 sl, Sederunt book 1750–1784, fol. 225. 40 Ibid., entry dated 1 June 1770. 41 Counting from 1 Jun. to 31 May each year, the number of new notaries between 1760 and 1780, in five-year periods, was: 135 (1760–65), 158 (1765–1770), 166 (1770–1775) and 177 (1775–1780).
42 alsp, Dreghorn collection, vol. 2, Memorial for James Gilkie and the Procurator Fiscal of Court, Pursuers; against William Wallace Writer in Edinburgh, Defender, 7 Mar. 1759, p. 52; Finlay, ed. arnp, i, no. 1506. 43 nrs, Commissary court of Dumfries, act books, CC5/6/17, fol. 328. 44 nrs, Court of Session, books of sederunt, CS1/20, 15 Dec. 1820; sl, ws Society Sederunt book 1806–1819, fols. 263, 270–72. 45 Ibid., fol. 271. 46 sl, ws Society Sederunt book 1830–1840, fol. 78. 47 sl, ws Society Sederunt book 1876–1887, fols. 481–2, 15 Nov. 1886. 48 39 & 40 Geo. iii, c.72, s.7. The “attorney tax” was the name given to the stamp duty imposed on licenses given to procurators admitted to courts throughout Great Britain under legisla- tion originally imposed in 1785. See Finlay, “Tax the attornies!,” 142–3.
Status
The social status of notaries varied dramatically. At the lower end of the spectrum were writers whose practice was only marginally viable and who, like James Gilkie, might have personally experienced imprisonment for debt.54 Even messengers, who, as debt collectors, cut a very low figure in society, might aspire to become notaries. This was particularly true in smaller burghs. The messenger John Dickson, accused in 1757 of malversation of office through neglecting to execute a caption, was able to respond by describing himself as a messenger, writer, notary 49 50 51 52 53 54
49 nrs, Sheriff court of Stonehaven, diet book, SC5/15/4. 50 nrs, Sheriff court of Jedburgh, register of law agents, SC62/27/1. 51 See Finlay, ed. arnp, i, 6, 26. Admission figures continued to increase after 1785. The figures by decade for admissions are: 1780–1789 (381), 1790–1799 (440), 1800–1809 (480). 52 Law Agents (Scotland) Act Amendment Act 1896, s. 2. Now see the Solicitors (Scotland) Act 1980, s57(1). 53 Ibid., s58(5) as amended by the Legal Profession and Legal Aid (Scotland) Act 2007, s. 62(3). 54 Finlay, “Lower branch of the legal profession,” 50–1. See also Hugh M. Milne, ed. The Legal Papers of James Boswell, vol. 1 (Edinburgh: Stair Society, 2013), 270–285.
Data collected from the Admission Register of Notaries Public
Period Average (median) age Number (total)60
1700–1704 25.95 (24) 142 (142) 1705–1709 24.94 (23) 172 (172) 1710–1714 26.01 (24) 123 (123) 1715–1719 24.8 (23) 106 (106) 1720–1724 24.8 (23) 137 (141) 1725–1729 23.44 (22) 152 (152) 1730–1734 23.02 (22) 144 (146) 1735–1739 23.59 (22) 103 (149)
5556 source:57 nrs, np2/17/2-23. 58 59 60
55 alsp, Craigie collection, vol. 46, no 5, The Petition and Complaint of John Farquar, etc, 2 Feb. 1757. 56 Ibid., Answers for John Dickson, provost of Lochmaben, 23 Feb. 1757, p. 2. 57 hac, Inverness tcm, BI/1/1/9, fol. 23v. 58 The last notary whose age is expressed is Robert Drysdale on 27 Feb. 1739. 59 The only 18 year old, David Baillie (adm. 24 Feb. 1728), seems not to have had a cautioner. After 1737 the recording of ages tails off significantly. 60 This column contains the number of entries in which the notary’s age was expressed, with the total number of entries in brackets.
John Murray, in 1742, sought to justify his appointment as keeper of the minute book in the Court of Session by arguing that minors were admitted as notaries “which is a more universal & important Trust” than the position he sought within the court. He was not successful but part of his argument was that if it were acceptable for an advocate to gain entry to the bar, or a notary to be admitted, while still technically a minor, then he ought not to be held to a dif- ferent standard. As his petition narrated
an advocate or a notary may be safely admitted tho’ somewhat within the age of Twenty one, Because it is not likely he will be solely trusted with much business till he is past that age And in the case of the office in ques- tion [keeper of the minute book] It is most certain that the same may be equally well performed by a man of Twenty as by a man of Twenty one.61
By European standards, the Scottish approach appears somewhat conservative. The admission of minors as notaries was long recognised elsewhere. In a case reported by Louis le Caron, it was determined in France in 1574 that any minor who was a notary should not be relieved of an obligation entered into on the basis of his minority because, as a holder of that office, he was deemed to be of the age of majority.62 In Rome, however, from 1580 the minimum age for a notary was twenty and, after reform in 1679, this was increased to twenty-five.63
Trust
As Murray’s argument indicates, great emphasis was placed on the trustwor- thiness of notaries. This was quite natural given that, in their role as recorders of transactions and authenticators of documents, they had the potential to do great harm to future generations as well as their own. Cases of forgery, which were almost always thought serious enough to merit the direct and immediate
61 62 63
61 nrs, Court of Session, books of sederunt, CS1/12, fol. 162r, 3 Feb. 1742; see also, Finlay, Community of the College of Justice, 234. 62 Louis Carondas Le Caron, Responses du Droict Francois: Confirmees Par Arrests Des Cours Souveraines De France, & Rapportées Aux Lois Romaines (Paris: L’olivier De P. L’Huillier, 1586), 3.30 (p. 158). 63 Laurie Nussdorfer, Brokers of Public Trust: Notaries in Early Modern Rome (Baltimore: John Hopkins University Press, 2009), 42, 202. Cf. a motion in 1798 before the ws Society for entrants to be not admitted to trial unless at least aged 24 years 9 months: sl, ws Society Sederunt books, 1785–1805, fol. 337.
that as Notars are Officers of the Law of considerable Importance, they ought duly to exerce the Trust committed to them; fidelis ero is the Motto assumed by some of them, and ought to be the governing Rule to all, and being immediately under your Lordships Jurisdiction, they must answer summarily in Matters of this Kind.65
Given that some notaries might be of lower status and income than others in the legal profession, there were obvious temptations for them to abuse their position. Gavin Hamilton, notary of Sir Duncan Campbell of Glenorchy in the late sixteenth century, made allegations of forgery against his former employer. This was an apparent attempt at blackmail when Hamilton had fallen upon hard times, but Glenorchy was so keen to settle the matter that the accusations may have had substance.66 Being called at short notice to attend the dying, particularly when a resul- tant testament surprised and disappointed family members, was a particular circumstance in which notaries’ honesty might be called into question. In 1732 Charles Areskine ended a pleading written in support of the daughter of the Glasgow merchant, James Colquhoun, with the following statement:
We have formerly heard of Testaments made, by a Notar’s putting the Pen in the hands of a dead Person; and whether this Decision might not tempt Notaries to try the same Game again, is left in your Lordships Judgment.67
The case was a contest between the daughters and the widow of Colqhuoun. Having suffered fits in the period prior to his death, there was doubt about his mental state and capacity to make a testament. Colquhoun was a cousin of the 64 65 66 67
64 nrs, Court of Session, books of sederunt, CS1/14, fol. 34r. 65 alsp, Miscellaneous collection, ser. 17, vol. 1739–42, no. 60, The Petition and Complaint of High Gibson Writer in Air [sic], 26 Jan. 1739, p. 3, per Gibson and Andrew Macdoual. To “exerce” is to exercise; “fidelis ero” means “I shall be faithful.” 66 Watt, “Chiefs, lawyers and debt,” 167–171. 67 alsp, Hamilton-Gordon collection, 1st collection, vol. 9, no. 14, The Petition of Agnes, Sarah, and Henrietta Colquhouns, and their Husbands, and Henry McCaul their Factor, 16 Feb. 1732.
Glasgow procurator, John Wardrope, who was one of several witnesses to give evidence concerning his last days. Also present to testify to his lucidity were the writer John Chapman, who wrote his will, and Hugh Crawford and Alexander Wotherspoon, two writers and notaries there to assist in its execution. The question was whether Colquhoun had been mentally competent when he responded affirmatively on being asked whether he left all his moveables to his wife. The legal opinions of a variety of jurists, from Voet, Zasius and Mascardi to Henry Swinburne, were discussed on both sides. So far as the notaries were con- cerned, they were not accused of putting a pen in the dead man’s hand. However, the deceased had said “Yes” when Wotherspoon asked if he wanted him to sign on his behalf the testament which he had just read over. Colquhoun then
took his Hand from under the Blanket which was about him, and took the Pen out of Mr. Wotherspoon’s Hand, put it towards his Breast, and then returned it to Mr. Wotherspoon with a Bow, and answered the same Question, and did the same Things to the other Notary.68
Robert Dundas, counsel for the widow (and prospective beneficiary), took this as clear evidence of competency, although his paper was never discussed by the judges because the parties settled out of court. Despite Areskine’s reference to earlier malpractice, the depositions in this case actually show the notaries in a positive light. Wotherspoon testified that having “observed the Defunct to be in a Fit” in the morning he had refused to sign for him until he had recovered, only doing so upon returning twelve hours later.69 Crawford indicated that he thought, at the time of entering the sub- scription, that Colquhoun understood what he was doing otherwise he “would not have subscribed as Nottar for him.”70 The Edinburgh writers David Dickson and Andrew Deuchar were likewise present at the deathbed of Barbara Douglas, widow of the advocate Charles Gray, in 1734 and testified in similar circumstances. Deuchar, as witness, made it clear to the assembled company that it was essential for the testatrix to give “express Orders to the Notar” and when Dickson, as notary, held the pen to her, Deuchar “saw her touch the Pen, upon which Mr Dickson subscribed the Paper for her.”71 68 69 70 71
68 Ibid., Answers for Janet Herbertson, Widow, 3 Jul. 1732, p. 7. 69 Ibid., Copy Proof for Janet Herbertson, 24 Jan. 1732, p. 5. 70 Ibid., p. 7. 71 alsp, Hamilton-Gordon, 1st collection, vol. 12, no. 12, State of the Proof in the Process of Reduction etc at the Instance of Margaret Douglas Relict of Mr John Plenderleith Writer to the Signet, 28 Nov. 1734, p. 19. See further below, page 398.
Negligence by notaries was as much a difficulty as intentional wrongdoing. The courts were full of reminders of the consequences which might ensue if a deed was poorly drafted. This drove counsel to argue about vitium scriptoris (the fault of the writer), and to query whether the text of a deed reflected the inten- tion of the parties or whether the confused hand of an ignorant drafter had misrepresented that intention. A marriage contract of 1652, for example, writ- ten by a country notary in an “extraordinary style” without “the assistance of any Lawyer or Writer of Skill”, purported to create an entail but when it came to be judicially interpreted sixty years later it was found to lack several key clauses.72
Notaries as Town and Sheriff Clerks
As noted in earlier chapters, town clerks played an important role in the world of legal practice and much depended on their fidelity and accuracy, even if they were not always well rewarded in terms of salary or fees. The town clerk of Falkland, for instance, received only £18 Scots per annum in the early 1770s, although, at the same period, the town clerkship of Campbeltown was worth £25 sterling per year.73 While qualification as a notary was not strictly a pre- requisite for appointment as a town clerk, in reality it was near to impossible for a clerk to carry out his functions properly without having that status. The security of those living within burghs depended on clerks being properly quali- fied as well as their being of good character. In 1725, the burgh of Dysart had three notaries vying for the office of burgh clerk, but not all towns were in so fortunate a position and standards varied.74 Part of the town clerk’s responsibility was to draw up a variety of instru- ments on behalf of the town council, ranging from protests in commercial or political matters to instruments of sasine. The inability to execute such deeds lawfully was a severe handicap, as Michael Bell, joint town clerk of Linlithgow with his father, acknowledged in 1741.75 Despite having been appointed for life in 1739, Bell had not yet qualified as a notary when his father Alexander, through illness, became unable to draft instruments of sasine. In the face of angry public demand, Bell successfully petitioned the council to permit him to
appoint72 as a deputy a practising notary who would be able to deal with such 73 74 75
72 alsp, Forbes collection, vol. 2, Information for Mr Archibald Johnston and Archibald Tod against Adam Murray, 7 Dec. 1713, fol. 1991. 73 saul, Falkland tcm, B25/5/1, fol. 93; nrs, Campbell of Barcaldine papers, GD170/1113. 74 nrs, Dysart burgh court book, B21/9/4, 18 Sep. 1725. 75 nrs, Linlithgow tcm, B48/9/10, fols. 63–4; for the date of appointment, see fol. 3.
76 Ibid., B48/19/13, fol. 62. Alexander, born about 1689 according to the admission register, would have been aged about 77 at the time of his resignation. 77 alsp, Swinton collection, vol. 9, no. 18, Answers for David Adam, Shoe-maker in Multreeshill; to the Petition of John Mitchell, Mariner, 23 Jun. 1767, p. 2. 78 Ockrent, Land Rights, 163–183, esp. 177–8. 79 Acts of Sederunt 1553–1790, 151–2 (22 Feb. 1681, Act anent Sasines and Reversiones of Lands within Burgh); Ockrent, Land Rights, 179–180. 80 Ibid., 175, 182–3. 81 sba, Jedburgh tcm, BJ/1/9, fols. 115–16.
the town clerks of Dunbar & Falkland were only admitted Notarys last session tho’ they had been elected Town Clerks to these Boroughs some considerable time before.82
Town clerks also needed the status of notary to record the election of delegates in those burghs which shared a member of parliament with their neighbours. If a notary did not formally record the choice of delegate, then the process was invalid, according to the advice given to the town council of Fortrose in April 1761.83 Unfortunately for the councillors, they had recently appointed Colin Mackenzie, a writer in Dingwall but not a notary, to replace the late William Reid as their town clerk. The councillors ought to have known better. Two years before, it had emerged that George Baillie, by then procurator fiscal but in 1747 the town clerk, had enjoyed no authority to write burgess tickets because he was not a notary public.84 The councillors had, at least, expressly retained the power to revoke Mackenzie’s appointment and this they did in August, citing the fact that Mackenzie had not moved to the burgh and had tried to exercise the office from his home in Dingwall, fifteen miles to the west. In his place they appointed the Inverness writer William Fraser junior, but later removed him also for non-residence. The need to find a notary eventually led them to cast their net even wider. Fraser’s successor, George Greig, was a writer in Dunkeld, nearly seventy miles away, but came to settle in the burgh on his appointment in 1762.85 The office of town clerk was one of great trust. The clerk held the council’s minute book in his custody and had a role in burgh elections, which were often hard fought and became the occasion of bribery and undue influence. Allegations of corruption were usually recorded in a notarial instrument by the town clerk (unless he himself was suspect). An example is the instrument taken by the provost of Burntisland in 1788 in the hands of Andrew Hutchison, notary public and common (town) clerk.86 82 83 84 85 86
82 nrs, B58/19/20/17, “Petition for William Little, 1781.” He was admitted as a notary in 1782: Finlay, ed. arnp, ii, no. 2278. Those referred to were probably Harry Hope (ibid., no. 2226) and John Tait (no. 2240). 83 nrs, Fortrose TCM, B28/8/3, 19 Aug. 1761. For example, nls, Saltoun papers, ms 16552, fol. 196, where a similar minute, not authenticated by a notary, might require to be sent to the sheriff to have the defect removed by having oaths taken judicially in support of it. 84 nrs, Fortrose tcm, B28/8/3, 9 Jan. 1759. 85 In 1763 Greig even became a councillor, although it was incompatible for a town clerk to serve on the council: see, e.g., nls, 17532 fol. 129r. 86 nrs, Burntisland tcm, B9/12/19, 24 Sep. 1788.
In 1767, George Greig’s clerk in Fortrose, the 19-year-old Robert Logan, found himself in the Tolbooth of Edinburgh having been convicted of breaching his master’s trust through gross prevarication and wilful concealment of the truth.87 During a highly contested Michaelmas council election, he had com- municated the contents of private letters in Greig’s “scrutoire” (escritoire) to his uncle. In Selkirk the election of a burgh delegate in 1727 was similarly the occasion of an alleged “high breatch of trust” by the town clerk, William Waugh, who had absconded from the town, taking the council minute book with him, by which means the delegate could not obtain a proper commission.88 The mag- istrates, at “about 10 at night”, took another notary with them to Waugh’s lodg- ing and made a notarised protest against the absentee clerk. This was another example of factional local politics and Waugh, who was also sheriff clerk, was eventually vindicated by the lords of session, and returned to office as town clerk in February 1728.89 If doubt were cast on the reputation of a town clerk, this had an immedi- ate effect on the credit of any instrument which he had drafted. When “sev- eral gross Malversations” were identified in regard to John Cant, town clerk of Inverkeithing, leading him to sell off his office quickly, the alarmed citi- zens “took Advice as to the Sufficiency of their Sasines taken by him.”90 Cant’s Latin was poor, indeed unintelligible, and his failure to docquet sasines in his own hand, or to record them properly, rendered several of them null. For instance, two of John Craich’s sasines were null, though Cant had made him “pay pretty dear for both.” A number of townspeople sought damages and recovery of their costs from Cant and petitioned to have him deprived of office as a notary. Although Cant was an experienced agent, his activities when acting as returning officer in the general election in 1734 also led to questions over his integrity and embroiled him in an action, this time brought against him by James Erskine of Grange, the advocate and former judge, who had lost the elec- tion. According to Robert Dundas (Erskine’s counsel), Cant was guilty of “one of the most gross Violations of the Freedom of Elections that hath at any time 87 88 89 90
87 alsp, Arniston collection, vol. 90, no. 2; see Finlay, “Lower branch of the legal profession,” 53. 88 sba, Selkirk tcm, BS/1/4, 2 Sep. 1727. 89 Ibid., 29 Feb. 1728. 90 alsp, Hamilton-Gordon, 1st collection., vol. 31, no. 29, The Petition and Complaint of Hugh Grandison late Baillie of Inverkeithing and others, against John Cant late Town Clerk of the said Burgh, 9 Feb. 1739.
Burgh Elections
Annual elections for councillors and deacons within the incorporations prompted many legal disputes over voting rights. The parties to these disputes, to make sure there was a clear record of the substance of their complaint, always ensured they had their own notary on hand to draft an instrument of protest. To exclude a notary on such occasions provided a ground of com- plaint.95 The presence of a notary was especially useful in the event of a riot during the election, as when Andrew Pitcairn was available in September 1760 to record the activities of a “tumultuous & audacious mob” as they obstructed proceedings and assaulted some of magistrates at the council election in Dumfries.96
91 92 93 94 95 96
91 alsp, Miscellaneous collection, vol. 17, no. 5, Information for James Erskine of Grange, Advocate, Against John Cant, Common Clerk of the Burgh of Inverkeithing, 4 Jul. 1734, p. 3. 92 7 Geo. ii, c. 16 (1734), An Act for the better regulating the Election of Members to serve in the House of Commons for that Part of Great Britain called Scotland, &c, 1734. Cf. Hill Burton, Lives of Simon Lord Lovat and Duncan Forbes, of Culloden, 187. It was Section 4 of this Act which obliged James Erskine to resign as a lord of session in order to stand for election. He was successfully elected in Clackmannanshire: Romney Sedgwick, The House of Commons 1715–1754 (London: h.m.s.o., 1970), ii, 15. 93 nrs, Sheriff court of Tain, minute books, SC34/1/3, 8 Oct. 1783. 94 Finlay, ed. arnp, i, no. 1735. 95 nls, Saltoun papers, ms 17532, fol. 204. 96 nls, Murray-Erskine papers, ms 5081, fol. 10r.
The substance of instruments taken on such occasions is often reproduced in council minute books. In Dunfermline in 1762 James Alexander, notary public and clerk to the incorporation of shoemakers within the burgh, recorded a protest against John Ferguson’s right to vote in nominating a shortlist from which the next deacon was to be chosen.97 Ferguson, it was alleged, was unqual- ified in terms of the constitution (or “sett”) of the burgh because he did not bear ‘scot and lot’ with his neighbours, did not have his own shop in the burgh and made no contribution to repairing the highways. Ferguson’s answers and coun- ter-protest were also recorded, as was a separate protest by others against Ferguson’s opponents, some of whom, it was alleged, had no vote because they no longer exercised their craft. One further example, an instrument taken in 1788 by Alexander Chrystie, the former provost of Burntisland, is particularly interesting because it alleged that the election of his replacement as provost had been brought about “by corrupt & illegal practices of every sort.”98 In par- ticular, he alleged that the new bailie had bribed other councillors into voting for a new provost. The instrument was drafted by the notary, and town clerk, Andrew Hutchison. In electoral matters, notaries were not merely recorders of complaints against others. They were themselves sometimes the object of complaint. There is some irony in the fact that an instrument recording the dismissal of John Crombie and his son, Archibald, as joint town clerks of Jedburgh in 1734 was drafted by Thomas Rutherford. Archibald had been Rutherford’s cautioner (or guarantor) when he became a notary in 1722.99 The Crombies were dismissed for malversation of office. They had attempted to bribe councillors in favour of a potential parliamentary candidate, allegedly offering hundreds of guineas quite openly at the council table. They were ordered to deliver the council records, minute books and town seals. The new town clerk, John Haswell (probably the son of the then provost), was not a notary but managed to qualify as one six months after his appointment.100
97 98 99 100
97 nrs, B20/13/10, 24 Sep. 1762. Cf B20/13/11, 23 Sep. 1774, Alexander recorded a protest against James Mercer’s right to vote on the basis of his lack of sufficient domicile within the burgh. 98 nrs, B9/12/19, 24 Sep. 1788. 99 Finlay, ed. arnp, i, no. 602; Archibald himself became a notary on 14 Feb. 1727: ibid., no. 753. 100 He became town clerk on 18 May 1734: nrs, B38/7/1, fols. 314–5; and a notary on 21 Nov: Finlay, ed. arnp, i, no. 981.
Protests
Amongst the general business of the notary, drafting instruments recording intimations or protests was amongst the most prominent. Using a notarial instrument to record the intimation to a debtor of the transfer of the debt to another creditor was often the safest but not the only means to achieve the transfer.101 An equivalent act of intimation, short of a notarial instrument executed before two witnesses, might have the same effect of divesting the cedent (or transferor) of title and investing it in the transferee. As a result, men with some legal knowledge might be disposed to avoid using notaries when it was unnecessary to do so. As George Innes wrote to Lord Barjarg in 1768, a few words of acknowledgement from him of the intimation of an assignation (in English law, an assignment) should “be equall to a formal intimation, and saves your Lordship the trouble of a notary publick & writers fees.”102 The register of deeds contains many protests drafted by notaries, normally against the non-payment of debts. Bonds in which such debts were constituted sometimes identified a coffeehouse or tavern as the place where payment of the debt was to be made.103 This was perhaps in an effort to ensure payment in a place where a notary was likely to be found. John’s Coffeehouse in Edinburgh, or the Exchange Coffeehouse in Glasgow, were regularly nominated as places of payment, as was the Post Office or the office of the town clerk. Some creditors, however, specified that payment should take place in their shop or at their house. Every protest tells part of a story. One random example from the middle of the century is the failure by William Macpherson to pay a bill for £26 Scots to Thomas McPherson of Nissindally. The bill had been drawn by Hugh Mcpherson on 16 August 1749, payable “within the court house of Ruthven” to Hugh Mcpherson of Urie on 15 August 1750. William, as the drawee and acceptor, had accepted it before witnesses. The payee had indorsed the bill to Thomas but William refused to pay, leading Thomas to protest for “Damnage Interest & Expenses”, taking instrument before witnesses in the hands of John McPherson, a writer in Ruthven of Badenoch and notary public.104 The same volume con- tains another bill, drawn by Thomas Fotheringham in respect of the purchase
of101 a horse, made payable “at Cl[er]k blacks in Dumfermling” where, on its 102 103 104
101 Cf. comments of James Ferguson of Pitfour in alsp, Hamilton-Gordon, 1st collection, vol. 39, no. 23, Information for Henry Guild and ors against William, Earl of Aberdeen, 9 Jul. 1728, p. 2. 102 nls, Erskine-Murray papers, ms 5083, fol. 8r. 103 E.g. nrs, Register of deeds, RD3/241/2, fol. 378 specified payment in “within the Coffee- house of Inverness.” 104 Ibid., RD2/168, fol. 129.
105 106 107 108 109 110 111
105 Ibid., fol. 307. 106 Ibid., fol. 277. 107 alsp, Miscellaneous collection, ser. 17, vol. 1730–37, no. 177, The Petition for George Mackenzie of Inchcoulter, 19. Jun. 1731, p. 1. 108 nrs, Register of deeds, RD3/241/2, fol. 378. 109 Ibid, fol. 852. 110 Ibid., RD3/243, fol. 1090. 111 E.g. nrs, RH15/135/1/2.
112 113 114 115 116 117 118
112 nls, Saltoun papers, ms 16562, fol. 196. 113 See opinion of Alexander Boswell relating to a controverted election in Stirling in 1753: ibid., ms 17532, fol. 204. 114 sba, Jedburgh tcm, BJ/1/1/7, 24 Sep. 1774. 115 alsp, Arniston collection, vol. 103, no. 36, The Petition of James Steel, 13 Dec. 1770. This case concerned the failure to authenticate steps to enforce a bond of reversion, the “jotting of a notary” on the reverse being insufficient proof of attempted enforcement. 116 rps 1686/4/45, Act for writeing sasines be way of book. A leaf is a sheet (two pages) rather than a page. Modern law still requires, for a presumption of validity, that a granter sign each sheet of a testament, rather than each page: Requirements of Writing (Scotland) Act 1995, s3(2). 117 alsp, Erskine collection, vol. 2, The Petition and Complaint of George Hamilton Surgeon in Stranraer, 17 Jan. 1781, p. 2. 118 Duke of Roxburgh v Feuars of Kelso, 1741, Mor. 14332; Clark v Waddel, 7 Feb. 1752 Mor. App. Sasines, no. 1. The matter was addressed by an Act of Sederunt on 17 Jan. 1756; henceforth a strict interpretation was to be taken in relation to new instruments of sasine: Acts of Sederunt 1553–1790, pp. 493–4.
Fees
Notaries did not receive particularly high fees. According to a Perth lawyer’s memorandum book, perhaps owned by the writer John Mercer, for “signing notar” in relation to a settlement in 1749 the modest sum of 12 shillings Scots was paid.122 In the same burgh in 1797, the table of fees permitted a notary to receive 7s 6d for taking infeftments where the property was worth under £200, rising to a guinea if the property was worth above £500 and 16s 6d if it was valued in between.123 The same table allowed the notary to charge half a crown per mile for horse hire in the event that the infeftment was taken more than a mile from his residence. It also specified charged for protesting bills. Again, these varied with the value—one shilling for bills worth under 40 shillings, and 1s 6d for those of greater value. For notarial copies of documents, 1s 6d was charged for the first sheet and one shilling for every other. 119 120 121 122 123
119 alsp, Erskine collection, vol. 2, no. 2, The Petition and Complaint of George Hamilton Surgeon in Stranraer; 17 Feb. 1781, p. 5. 120 alsp, Arniston collection, vol. 133, Replies for George Hamilton Surgeon in Stranraer; to the Answers for John Russell, junior, ws, 15 Feb. 1781, p. 2. 121 nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/31, 14 Dec. 1748. 122 pkca, Memorandum book (possibly of John Mercer), B59/38/1/30, fol. 1. 123 pkca, Perth table of fees, 1797, B59/29/141. The sheriff court charged a similar fee of 1/6 per mile for a notary: ibid., B59/26/1/115.
James Gilkie, in discussing personal diligence and the taking of a protest for non-payment on a bill of exchange, remarked as follows:
The dues of the notary for protesting very often varies. Some take a shilling, some eighteen-pence, some a dram. I have myself protested hundreds for nothing.124
The fee taken in 1782 by a notary for intimating to a litigant and her agent that a bill of advocation had been presented in a commissary court case was 2s 6d and fees of that order were not uncommon.125 In the Aberdeen sheriff court table of fees set out in regulations in 1786, the maximum permitted to a notary for protesting or noting a bill once again varied with its value.126 For bills under £5, not more than one shilling could be taken. For any bill worth £20 sterling or more, 2s 6d could be charged. In both cases, however, the notary was allowed 1s 6d “for every measured mile he travels from his place of Residence” in order to make the protest. For signing a deed for a party, each notary could charge 2s 6d. When drafting a notarial protest the fee varied with the number of sheets, with 2s 6d charged for the first and a shilling for each sheet thereafter. If a copy was necessary, only three pennies per page of a copy could be charged. For raising an arrestment, again no more than 2s 6d could be charged. More might be paid occasionally and there is some evidence of sharp practice. The poinding of debtors’ goods, in particular, was an opportunity for the unscrupulous to take advantage of the distressed or to collude with them. The first creditor to arrest a debtor’s goods might deliberately under- value them and, often with the aid of corrupt messengers, prejudice the other creditors. For this reason, in 1754, the equalisation of diligences was introduced by the lords of session.127 In an exception to the prior tempore, potior jure (earlier by time, stronger by right) principle, creditors were to rank pari passu (on an equal footing), provided their arrestments were made within sixty days before bankruptcy or four months following. The sale of poinded goods now had to proceed, under warrant from the sheriff, at a public roup (auction). This new system, which led to sheriffs introducing regulations for the grant-
ing124 of warrants, was the occasion of an interesting legal process which was 125 126 127
124 Gilkie, Every Man his own Procurator, 39. A dram refers to a drink of whisky. 125 nrs, Macdonald of Sanda papers, GD92/168. 126 nrs, Sheriff court of Aberdeenshire, diet books, SC1/2/67, fol. 315. 127 Acts of Sederunt 1553–1790, 478–9 (10 Aug. 1754, Act of Sederunt anent Poindings and Arrestments).
Culture
The standard text for notaries, the Ars Notariatus, was widely owned and appears in inventories of the estates of local writers and notaries across the country.131 This was a typical literary product of European influence as equivalent manuals had appeared for centuries on the continent before a Scottish version emerged.132 In objecting to James Gray, for instance, Joseph Forrest relied on a passage from this book which itself was based upon a citation from Johannes Brunnemann’s com- mentary on Justinian’s Codex, concerning the need for candidates for any public office to be “of untainted fame and reputation.”133 128 129 130 131 132 133
128 alsp, Arniston collection, vol. 61, no. 23, The Petition of John Dalziel of Fairgirth and Ors, 22 Dec. 1761. 129 Finlay, ed. arnp, i, nos 855, 1547. 130 nrs, Letterbooks of Duncan Campbell, GD1/205/6, i, fol. 10. 131 Finlay, “Local lawyers and their libraries,” 45. 132 E.g. Artis Notariatus, Sive Tabellionum (Lyon: Jean Frellon, 1550); Jacques Thuys, Ars Notariatus: Dat Is, Konste Ende Stijl Van Notarischap : Begrepen in Theorijcke En Practijcke (Arnout Coninx, 1590). 133 See Office of a Notary, 26; citing Brunnemann (1608–72), Commentarius in decem libris Codicis Justinianei, 10.57.1 [recte JC 10.59.1].
In fourteenth-century Italy, Bartolus held that the office of notary had digni- tas (esteem), although the status the office enjoyed was traditionally much higher in southern Europe than in the north.134 While the office of notary did represent an improvement in status for those at the very low end of the profes- sion—the writer Robert Drummond thought that gaining it might “enable him the better to earn his Bread”—this adjustment was a relative rather than an absolute one.135 In a case in 1733, in which an attempt was made to prove the tenor of a sup- posed lost disposition by means of an instrument of sasine in favour of the sup- posed granter’s widow giving her a liferent, it was argued that the mere assertion of a notary should never be sufficient evidence to prove the terms of a missing document. The late husband’s creditors pointed to how dangerous this might be for the public “considering the present low State and Character of many of our Country Notars.”136 Given that such a liferent might be prepared years before the husband’s death, and that the notary and witnesses might die before it took effect, proving that it was forged might be an impossible task. The office of notary in Scotland might be attached to a range of other legal offices, so in theory it might be considered broadly neutral in terms of indi- cating social status. Given the lack of robustness in the examination process, however, entry to the office, while granting a formal status, did not necessar- ily indicate a very full understanding of legal forms or the law relevant to them.
Conclusion
Notaries, like writers and messengers, were ubiquitous in Scotland and regu- larly appear in records of all types. They were well-known in their communi- ties and threatening to call upon their services was a common ritual when discussions got heated, or rights were ignored, and formal protests might be necessary. The diversity of circumstances in which they might be summoned could make the life of a notary unpredictable, not to say potentially dangerous if they found themselves pressed into service by the wrong clients. 134 135 136
134 Bartolus, Commentaria in tres libros codicis, 1.15.pr. (i, p. 28). 135 aslp, Elchies collection, vol. 15, no. 10, Memorial for Robert Drummond Writer in Edinburgh against James Lindsay etc., 10 Jul. 1744, p. 2. 136 alsp, Elchies collection, vol. 6, fol. 521r, The Petition of Master Francis Sinclair, Brother to the Earl of Cathness [sic], against Mr Robert Sinclair, Advocate, 5 Dec. 1733, per Robert Craigie.
John Gray, a procurator and notary in Haddington, was sitting quietly in the public house owned by John Ainslie, the town clerk and a fellow notary, in September 1745 when he was called into another room.137 There he was con- fronted by several Highland gentlemen, still fresh from the victory of the Jacobite army at nearby Prestonpans, who wanted him and Ainslie to witness the count- ing of money which they had claimed in land tax from Patrick Hepburn of Kingstoun in the name of Prince Charles. Gray witnessed the count but declared that “he did not know how to take an Instrument upon any such Thing” and, perhaps bravely, declined to take one. Other notaries were sometimes asked to undertake tasks of some novelty which were beyond their or anyone else’s experience. When Alexander Scrymgeour-Wedderburn had a dispute concerning whether or he had a right to supporters for the arms he had matriculated, he found precedent in the Dudhope family which he thought indicated that evidence of supporters on a seal on a charter prior to matriculation established a right to them. He acquired a stone from the corridor of Dudhope house, the seat of the Scrymgeours, which bore evidence of supporters being used. When the deacon of the masons in Dundee removed it, he asked a notary, Andrew Davidson, to make out an instrument recording the fact. Davidson was “unacquainted with the stile of such a writing”, therefore Wedderburn asked Samuel Mitchelson ws to provide one, the sort of challenge that a more resourceful man like Mitchelson may have taken in his stride.138 Unlike some legal offices, there seems to have been no role with which the status of notary was incompatible. The notary David Cumming, for example, was appointed burgh fiscal in Inverness in 1706 when a vacancy arose, the council noting that “the burgh cannot want ane fiscal to pursue ryotts and any other abuses that may heppan to be committed.”139 Robert Kilgour was appren- ticed in Arbroath in 1824 to William Colvil, a local writer who trained him “in his profession of a Conveyancer, Notary Public, Agent and Procurator.”140 From advocate, and writer to the signet, to common messenger, the usefulness of the office is clear from the diversity of lawyers and others who sought to obtain it to
improve137 their income or advance their careers. 138 139 140
137 alsp, State of the Process, Patrick Scot-Hepburn of Kingstoun against Robert MacLauchlan of that Ilk, 4 Jan. 1751, Pitfour collection, vol. 7, no. 19. 138 nrs, Scrymgeour Wedderburn papers, GD137/3315. 139 hac, Inverness tcm, BI/1/1/9, fol. 23v. 140 nrs, “The Petition of Robert Sibbald Kilgour, 21 July 1834”, SC47/17/1.
I shall never have a Cause or Process in the hands of Lawiers or Writters after this year…and if Providence delivered me once out of their hands, I shall kiss their arses at the cross of Edinburgh if ever they get me to their hands again.1 Lord Lovat
As these words suggest, lawyers could not please everyone and litigants, once caught in the vice-like grip of a law plea, could find themselves in for a long and tortuous experience. In 1767 it was noted that the island of Arran contained no writers or notaries public at all.2 Far from being a Utopia, however, subtenants found themselves exploited because no one could draw appropriate leases in legal form. Some of these Gaelic-speaking “ignorant Country-people”, as they were described, merely accepted receipts for their entry money and then found them- selves at the mercy of their landlords. Where lawyers did exist, the experience of clients was as varied as the circumstances of the legal practitioners themselves in a profession that ranged widely, from wealthy and successful advocates to urban writers and country agents whose own finances were sometimes precarious. Despite its variety, legal practice in the eighteenth-century, wherever it was found, did have a number of common features. One, shared with most profes- sions, was that it could be fiercely competitive. The level of competition grew in the second half of the century as increasing litigation attracted more and more men to the profession. In metaphorical terms, legal practice was a war in which lawyers fought with their wits in order to survive. Many who failed in business largely failed financially too; the evidence of this is seen in petitions for charity directed to their brethren. Military analogies were commonly employed in pleadings and in private correspondence amongst the legal fraternity. Protagonists had to muster their weapons, be they “spiritual” weapons in the ecclesiastical jurisdiction or “long” weapons in the form of preliminary pleas.3 Cases presented in court were
1 nrs, Fraser papers, RH15/13/52, Lord Lovat to William Fraser, 30 Jan. 1742. 2 alsp, Swinton collection, vol. 9, no. 16, The Petition of Donald Mackennan, John Maccook and others, Subtacksmen of the Town and Lands of Benecargen, in the Island of Arran, 30 Jun. 1767, p. 1. 3 alsp, Swinton collection, vol 2, no. 35, The Petition of Mr George Trail of Hobbister, Minister of Dunnet and Mr David Dalrymple, 25 Nov. 1766 (note of opinion of Lord Pitfour); Arniston
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collection, vol 87, no. 20, Answers for William Scot, Esq. one of the judges of the court of King’s bench in the kingdom of Ireland, and ors, 21 Sept. 1767, p. 1 (per Ilay Campbell); nls, Delvine papers, ms 1209, fol. 28. 4 E.g., [Duff, ed.], Culloden Papers, 71. 5 nrs, Fraser papers, RH15/13/52, Lovat to William Fraser ws, 23 Oct 1741. 6 Macmillan, Forms of Writing used in Scotland, xviii. Further editions of this work appeared in 1786 and 1790. 7 alsp, Elchies collection, vol. 14, Answers for Mr. Hugh Murray-Kynnynmound Advocate To The Petition of Dame Mary and Mrs Elizabeth Rocheads, 23 Nov. 1741, p. 1. 8 alsp, Arniston collection, vol. 169, no. 17, The Petition of Poor Margaret Andrew, Residenter in Ayr, 2 Dec. 1785, p. 13.
travelling from Edinburgh to Rotterdam in 1752 to examine witnesses on behalf of the countess of Strathmore.9 He was paid £150 for the expense and trouble of his return to the Netherlands where he had, as recently as 1749, matriculated as a student at the University of Leiden.10
Patronage within the profession
A related aspect of practice was the prevalence of patronage and nepotism. Particularly common in the inferior courts, these were an accepted feature of eighteenth-century life in general. The idea that offices should be held on merit, rather than through the influence of blood, friendship, or simply cash, was not alien but did not chime with everyday experience in a number of con- texts. An office could be directly sold, with money given to a person who had influence with the Crown, often himself holder of a superior office, who then procured it for a particular individual. An office holder might resign and arrange to sell his office. Indirectly, a person might be granted an office condi- tionally, with part of its income to be paid to a third party, for instance the seller’s widow. Another variant was for the person receiving the office to enter into a contract binding himself to hold it in trust for others and, in return, receiving only a proportion of the income. Many such offices were available to writers and advocates to supplement their income and, in some cases, the bulk of their income came from office-holding. In a highly competitive environment, offices could be keenly fought for; but not all offices attracted the same level of competition. Offices could be keenly fought for in private and this sometimes spilled over into the public arena. Competition could be high, but not all offices were equally desirable. In one litigated case, in which it was debated whether transactions involving patron- age raised questions amenable to decision in a court of law, it was boldly stated by Henry Erskine (see next page, Illustration 6) that:
The Clerkship of the Court of Justiciary, the depute clerkships of the bills, the Sheriff clerkships, all of which are in the gift of individuals, are daily sold for very high prices.11
9 nls, Delvine papers, ms 1195, fol. 47; nrs, Court of Session, Bill Chamber, CS271/62826, Countess of Strathmore v George Forbes. 10 Willem N. du Rieu, ed. Album studiosorum Academiae Lugduno Batavae, col. 1025. 11 alsp, Arniston collection, vol. 169, no. 24, Information for Mrs Sarah Dalrymple of Langlands, and Doctor William Park, Physician in Kilmarnock, her Husband; Pursuers against Charles Shaw, Writer in Ayr, Defender, 30 Jul. 1785, p. 17.
Illustration 6 Hon. Henry Erskine (1746–1817) of Almondell, advocate, dean of the Faculty of Advocates. By William Weir. Reproduced by permission of Edinburgh University Art Collection.
Many other offices were less lucrative. In the case Erskine was arguing, Charles Dalrymple of Langlands, keeper of the register of sasines for Ayr, had been able to procure for his nephew, the Ayr writer Charles Dalrymple of Orangefield, the office of sheriff clerk in the shire. Langlands had also resigned, in 1744, his keepership and obtained a new commission in favour of himself and Charles.
This, however, was intended to provide for the wider family, with Charles only to take a proportion of the income of the office with most of it to be appropri- ated for the use of the Langlands family. When Orangefield died, in 1781, his own nephew, Charles Shaw, was his depute in the office, receiving a sixth share with the remainder still going to the family of Langlands who successfully sought the services of Sir Adam Fergusson mp to procure a renewal of the office in their favour. The dispute that then arose was between Shaw and his cousins, with Shaw arguing that the agreement to share the income had no binding force upon him. The case was argued largely from the perspective of public law, with Erskine citing English statutes and cases, indicating that the sale of offices, and agree- ments to share their proceeds, were not necessarily contra bonos mores. Of more interest here is the fact that Shaw, in attempting to renege on a private agreement which honour might suggest should be kept, was a young man whose career was still recently begun. He had “entered upon business in a place where he had many competitors already established in the profession”, a statement which precisely explains why he fought so hard to secure even such a relatively minor income.12
Strategy
Another feature of the profession was resourcefulness and imagination. Ethics were sometimes intertwined with questions of legal strategy and practitioners were employed as much for their ability to strategise as their knowledge of law and procedure. There was not always a clear boundary between the legitimate striving for advantage and unethical conduct deserving of punishment. Litigants might privately resent certain behaviour by an opponent’s lawyer but refrain from making any public complaint because the nature of it was such that no judge would grant a remedy. John Murray, for instance, mentioned in private an Edinburgh agent who had gone to the clerk of session in charge of his client’s process and borrowed papers that he then retained until it was too late to reclaim.13 On the last day when a reclaiming petition could be lodged, he duly entered a petition in which he complained only about that part of the interlocutor which favoured Murray’s client, giving Murray no chance to respond. Presenting petitions at the last possible moment before the vacation,
12 Ibid., p. 3. 13 nrs, Maclaine of Lochbuie papers, GD174/273/3.
In the inferior Court, the Cause may be spun out by Answers, Replies, Duplies, and reclaiming Petitions; and, at last, perhaps, when the Cause has received a Sentence, or is ripe for one, it is removed by Suspension or Advocation into this Court; and then all the Proceedings in the inferior Court are little better than lost Time.16
Sometimes strategy required taking advantage of a personal contact. It was alleged in one case that the agent Hector MacLean was tipped off by a clerk in the office of one of the extractors in the Court of Session that his client’s adver- sary was about to obtain a scroll of the court’s decreet. MacLean managed to get the decreet marked and signed by the judge within an hour, rendering the
14 alsp, Kilkerran collection, vol. 16, no. 143, The Petition and Complaint of James Cuningham of Cullellan, 2 Feb. 1748, p. 3 (per Andrew Pringle); the second quote is William Grant’s: alsp, Miscellaneous collection, ser. 17, vol. (1739–1742), no. 144, Answers for Sir Harry Innes, Baronet, 6 Jul. 1739, p. 2. 15 gca, Records of Messrs Mitchells, Johnston & Co. solicitors, Glasgow, T-MJ/48, fol. 333. 16 alsp, Pitfour collection, vol. 19, no. 22, The Petition of John Wilson Writer in Edinburgh, 2 Aug. 1759, p. 7.
he would serve me as soon as he woud [sic] do any Relation he had, yet when there is a McKenzie concerned or a relation even at a Distance… all those protestations are forgot by his Lordship, however it is pru- dence in me to keep well with him & seem to believe his word even tho false.18
Of course, such cases involved a tangled web of loyalties. The agent opposing Lovat was John Mackenzie of Delvine ws, who had his own personal links to the judge. According to James Gilkie, whose self-serving account should not always be taken at face value, his adversary’s wife in one case personally spoke to Lord Kames in his Edinburgh lodging and claimed that he told her “he would
17 alsp, Kilkerran collection, vol. 16, no. 144, Memorial for James Cuningham of Cullellan, 27 June. 1748, p. 3. 18 nrs, Fraser papers, RH15/13/52, Lovat to Fraser, 11 Sep. 1741, contraction expanded.
19 James Gilkie, Speak Evil of No Man, But the Injustice done by Men, a treatise (Edinburgh, privately printed, 1774), 48; see also Roughead, “The wandering jurist,” 52. 20 nrs, Fraser papers, RH15/13/52, e.g. 26 Feb. 1743; 29 Jun. 1743; 24 Dec. 1743. 21 Finlay, Community of the College of Justice, 106; ibid., “The history of delay in civil proce- dure,” 144–5. 22 gca, Graham and Mitchell Letterbooks, T-MJ/48, fol. 309. 23 E.g. nrs, Murray of Lochbuie papers, GD174/1273/16.
so easy for the Writer of a Testament to impose on weak Persons, in mak- ing their Testament without the Presence of their Friends, by slipping themselves in for a Legacy, that no Regard ought to be had to such Legacies, unless they were supported otherwise than by the Testament, or pick’d Witnesses of the Writer’s chusing. An honest Writer, for whom a dying Person really designed a Legacy, would take Care to have him express his Mind as to such a Legacy before unsuspect Witnesses. …26
Spreul, who had made a point of removing all witnesses except his own apprentices, had not taken this obvious precaution.
Inter-connectedness
Finally, the profession depended on inter-connected individuals. Advocates had to impress agents who might then employ them; agents needed to attract clients and might seek patronage to get themselves better noticed; Edinburgh agents needed to foster professional links in the country to increase their level of business and their own reputation. The bonds of family and locality
24 alsp, Arniston collection, vol. 61, no. 25, James Tait and Ors v David and Alexander Howis, 18 Nov 1760. 25 D.48.10.1. See Olivia F. Robinson, The Criminal Law of Ancient Rome (London: Duckworth, 1995), 36. 26 alsp, Hamilton-Gordon collection, 1st collection, vol. 12, no. 17, Memorial and Abstract, Mrs Margaret Douglas, sister to the deceast Barbara Douglas, spouse to Andrew Spreul against Robert Spreul, etc., 19 Dec. 1740, pp. 23–4.
27 nls, Delvine papers, ms 1195. 28 Finlay, ed. arnp, I, no. 41. 29 Ibid., I, nos 456, 750 30 See Finlay, Community of the College of Justice, 165. 31 pkca, John Mercer, minute books, B59/38/1/14/2, fol. 10. 32 Ibid., fols. 23, 7. 33 Ibid., fol. 8; see also fol. 6.
Interestingly Mercer, an “excellent judge of men”, did not regard the reputa- tion of Robert Craigie, ordinary lawyer for Perth town council, as highly as did some others, a view that his former apprentice John Mackenzie is said to have communicated to Lord Minto.34 His “melancholy death” in 1736, aged about 58, prompted a typical round of competition for his office as keeper of the register of sasines for Perthshire.35 Mercer’s provincial career is fascinating but he was one lawyer among many; each has his own story and is part of the story of many other lawyers in their own town and further afield. Indeed the profession was filled with interesting characters of the kind so lovingly documented by Sir Walter Scott in his novels. We find traces of them in Ramsay of Ochtertyre and in John Buchanan whose memoir of his early days in Glasgow captured the end of a generation before the profession was changed forever by the industrial revolution. As the nineteenth century progressed, working practices altered as the law was modernised, with commercial prac- tice brought more into line with that of England under the influence of parlia- ment and of writers such as George Joseph Bell. Change was not uniform, although particularism across the profession even- tually gave way to greater national conformity in the regulation of standards. With the urbanisation of the nineteenth century, the scale on which legal ser- vices could be offered was also increased as legal partnerships developed and expanded. While many features of a conservative profession remained the same, aspects of the character of that profession underwent change in the course of the nineteenth century. The most obvious change to any observer, although not important in practical terms, was in physical appearance. Buchanan’s careful and detailed description of all those whom he recounted as working in the office of Ballingall and Ballingall when he started in 1816 (see Appendix), individually dressed in brightly-coloured costumes, would in time be replaced by the more sober and dull uniformity of the Victorian era. Much change certainly occurred in the eighteenth century: in jurisdiction; in manners; in the make-up of the bench; in the growing use of partnership; in legal education, and in general attitudes to law and legal sources. Lord Bankton, for instance, was regarded in the 1750s as “an old-fashioned man, who formed his manner and notions on the model of the lawyers that figured early in the century.”36 Yet there was also a great deal of continuity; the pattern of business remained similar. The Session Papers at the close of the century, while differing
34 Ramsay of Ochtertyre, Scotland and Scotsmen, i, 114n. 35 nls, Saltoun papers, ms 16556, fol. 132. 36 Ramsay of Ochtertyre, Scotland and Scotsmen, i, 131.
Appendix
No. 1. The booking of John Hamilton as an apprentice in Glasgow, 1794. rfpg, Sederunt book 1761–1796, fo. 256.
{Margin: John Hamilton Apprentice with John Anderson}
At Glasgow the twentieth day of August One Thousand seven hundred and ninety four years
John Hamilton son of Robert Hamilton Auctioneer in Glasgow is booked as an Apprentice with John Anderson writer in Glasgow for the space of five years complete from and after the twenty eight day of July conform to Indentures of that date shewn and returned. There was also produced a certificate of the Apprentice having attended the Latin class for four years in terms of the regulations of Faculty. Fees of booking Two Guineas paid the Collector.
No. 2. Transfer of apprenticeship in Glasgow to Robert Grahame, 1799 rfpg, Sederunt book 1796–1832, fo. 73
At Glasgow the third day of September Seventeen hundred and ninety nine years
There was presented to the meeting a Petition of Hugh Alexander lawful son of John Alexander merchant in Glasgow with the special advice and consent of his said Father praying that the Indenture dated the fifteenth day of October seventeen hundred & ninety six entered into between them and the now deceased John Shiels writer in Glasgow might be transferred to Robert Graham writer in Glasgow
The Faculty in respect of the said John Shiel’s death and of the said Robert Graham’s consent annexed to the Petition grant the desire thereof. The Petition and indentures are delivered to Mr Graham.
No. 3. Delayed booking, Faculty of Procurators in Glasgow, 1783
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{Indentures betwixt John Maxwell senr and Jas Ferguson refused to be booked but on pay[men]t of double fees}
The said day John Maxwell sen[io]r Presented Indentures dated 25 October 1782 entered into betwixt him & Archibald Smith in Co[mpan]y and partnership And James Ferguson eldest son of John Ferguson mess[enge]r in Glasgow for four years from the first of August last, in order to be booked. But as the Indentures were not presented within two months in terms of the regulations the Faculty Refuse to book the same without payment of double the fees.
No. 4. Expiry of indenture rfpg, Sederunt book, 1796–1832, fo. 59.
At Glasgow the seventh day of December Seventeen hundred and ninety seven
The Indenture which expired upon the third day of December seventeenth hundred & ninety six between a member of Faculty David Hutchison writer in Glasgow and Archibald Maxwell son of the deceased Robert Maxwell merchant in Glasgow with consent of his cautioner George Storie merchant in Glasgow containing a discharge by the master upon the back there of - - - dated the seventh day of December Seventeen hundred & ninety six was presented to the Clerk of Faculty this day to be entered in this record agreeably to the 7th section of chap: 4th of the late regulations. The Clerk had marked the booking of the expiry of that Indenture on the back thereof and returned it to the said Robert Maxwell.
No. 5. Rejection of John Law for admission as a procurator in Glasgow, 1796 rfpg, Sederunt book 1761–1796, unpaginated entry
At Glasgow the fourth day of February one thousand seven hundred and ninety six years
In the application of John Law as to the objections stated against him by the Collector for and in name of the Faculty of Procurators of his being guilty of gross Fabrication and Forging John Orr Esquire Commissary of Glasgow By his sentence of this date
Found the facts charged against the said John Low as proved, and Found these facts relevant to exclude him from being admitted a member of the Faculty of Procurators in Glasgow Refused to Admit him accordingly, Declared him incapable of being admit- ted a member at any futer1 [sic] period and Decerned accordingly and appointed this sentence with a short narrative of the facts upon which it proceeded to be engrossed in the diet Book of the court and the Process to be preserved in the records in order to prevent the admission of the said John Low as a Procurator at any futer period per incuriam.
No. 6. Alexander McGregor admitted procurator in Glasgow, 1792.2 rfpg, Sederunt book 1761–1796, fo. 207.
{Alexander McGregor admitted Procurator}
Att Glasgow the twenty eighth day of June Seventeen hundred and ninty [sic] two years
Alexander MacGregor Writer in Glasgow, is after due Examination found qualified and admitted a procurator – He paid Ten Guineas as the dues of his admission and three pounds Ster[ling] for exemption from quarter accounts.3
No. 7. Act of admission in the Paisley sheriff court book.
1 That is, “future”. 2 This is Alexander McGrigor of “McGrigors” fame, described by Buchanan in a note as “the son of a huckster in Old Wynd”, [Buchanan], Reminiscences, [gul, Spec. Coll., Mu24-c.3], 20. He became a partner in McGrigor & Murray in 1812; by 1847, following some changes, the firm was McGrigors & Stevenson, then in 1871 it became McGrigor, Donald and Co. McGrigors as a firm continued in business until 1 May 2012 when it merged with Pinsent Masons and the name is now lost. The spelling is “McGrigor” in other sources (including the register of nota- ries) but McGregor in the sederunt book. 3 Exemption from quarter accounts related to reg. 6 of the 1780 regulations of the Faculty whereby each procurator admitted was to be free of all quarter accounts or annual contribu- tions for the poor and “in lieu thereof pay along with his entry money Three pounds sterling for a total exemption”: rfpg, Sederunt book 1761–1796, fols. 86–7. Established members of seven years’ standing could pay 3 s annually for life or £1 10s for a lifetime exemption from this annual payment; those of less than seven years’ standing had to pay £2 10s for the exemption.
At Paisley the twenty eight day of June mvijc & seventy years sitting in judgement Mr Hugh Kerr sub[stitu]t[e]
Said day Hugh Snodgrass and James Wilson procurators of court appointed by the sheriff Interlocutor of date the twenty sixth instant to take trial of the Qualifications of James Orr Writer in Paisley upon his Petition to this court craving to be admitted pro[curato]r Have this day given a signed report Bearing that upon the twenty sixth day of June instant that they had in consequence of the said appointment taken trial and examined the said James Orr and that they had found him qualified for excersing said office which being considered by the said sheriff He hereby admits the said James Orr to be an ordinary pr[ocurato]r of court To whom he administrates an oath de fideli as use is Therefter [sic] the said James Orr repeated the oaths of allegiance and abjura- tion and signed the same with the assurance to his present Majesty in terms of the statute in that behalf made.
No. 8. Admission in the minute book of the Society of Advocates in Aberdeen. acaa, D528/2/1, 26 June 1777.
The meeting had laid before them Remitts from the sherriff & Commissary of Aberdeen to take Trial of the Qualifications of John Sim writer in Aberdeen for being admitted a Procurator before the Courts at Aberdeen and having examined the said John Sim upon the Municipal Laws of this Kingdom stiles and Forms of writes and Forme of the Courts at Aberdeen, They Find him duly qualified to be an Ordinary procurator before the said Courts and the Praeses has signed reports upon the Petitions accordingly being empowered for that purpose by the meeting [signed] Alex[ande]r Innes.
Thereafter the said John Sim represented that he had sometime exercised the office of a messenger But had renounced the same some years ago And Bound and Obliged himself never to act in that capacity in time coming [signed] John Sim.
No. 9. The “favoured circle” provision in Ayr sheriff court, 1799. nrs, CS271/71484
Ayr, 29th April 1799
That whereas many inconveniences have been experienced by this court and by the Leiges from the delay occasioned in the conducting of business and otherwise in conse- quence of the distant residence of some of the Pro[curato]rs of Court from the Burgh of Ayr where the Sheriff Court is usually held – therefore the Sheriff Depute after frequent communication on this subject with the Sheriff Substitute and the Society of Pro[curato] rs – ordains that in time coming no person shall be permitted to practice as Pro[curato] r in this court who has not his ordinary residence within three miles of the Burgh of Ayr with the exception only of such present practitioners as have for some years past resided at a greater distance than three miles provided always they do not remove to a place of residence still more distant, and provided also that they have an office in the Town where all intimations may be given and papers left for them with Clerks or other quali- fied persons to whom intimations made shall be held as given to the Pro[curato]rs them- selves and for whose careful custody of processes & papers the Pro[curato]rs shall be responsible – That in processes of removing and other summary actions much unneces- sary delay is occasioned by the Defenders availing themselves of the full time of fourteen days allowed by the present regulations even for 2d Recl[aimin]g Pet[itio]ns which in general contain little more than a simple craving for review therefor the Sheriff ordains that in time coming no more than seven days competent from the date of the Interlocutor complained of shall be allowed for a 2d Recl[aimin]g Petition in removing and other summary actions, and the Judgement shall be final if the same Recl[aimin]g Petition is not presented within seven days of the date of said Interl[ocuto]r without prejudice to the time of fourteen days allowed for the first Recl[aimin]g Pet[itio]n even in summary actions, continuing as produced by the 29th Regulation (signed) Ed[ward] McCormick.
No. 10. John Buchanan’s account of the writing chamber of Ballingall and Ballingall, at 32 Hutcheson Street, Glasgow in 1816.4 gul, Sp. Coll. Mu24-c.3.
Note. I may as well note down the names of the eight clerks and apprentices in Mr Ballingalls office when I joined it in Novem 1816; also their dress, so different from the present day
1. James Haddin, senior clerk. He was very clever and wrote most of the pleadings, age about 26. Dress, a light blue long coat with outside pockets, & flaps, drab
4 The partners were Andrew Ballingall (Buchanan’s apprentice master) and his brother Thomas. The firm is not mentioned in Hutcheson’s List of Legal Firms.
knee breeches, top-boots, white neck cloth, parti-coloured vest, and a squall of ruffles; large bunch of seals. {Died Janry 1841} 2. James McFarlane, copying clerk. A native of Bonaw, Argyllshire. Very proud, and conceited, pitted slightly with small pox, a very round head, like a goblet, with short hair, which he kept close cropped and perfumed with rose oil. His nose always reminded me of the extinguisher to a bed room candlestick. Rather inquisitive. Dress a light blue coat, grey trousers, shoes laced with leather whangs [straps], grey ribbed stockings, a buff neckcloth, and ruffles. A queer mortal. He went to Canada, and was many years Editor of a newspaper “The Kingston Chronicle”. {Died 1 August 1847} 3. Allan Jack. Residence “Day gait”. A drudge. Wrote a fine swift hand and sat oppo- site Mr Thomas Ballingall at the head of the public office, as his amanuensis. He was rather a low chap; had a snivel, and pock-pitted knock-kneed & splay feet. Dress, a brown long coat with brass buttons not overly well made dark grey trousers & shoes. No ruffles, blue spotted neck cloth, and a hat not of great value. He became a Member of Faculty. Died 1 August 1853. 4. Two brothers, sons of Peter Gordon, a little old man a writer in Balfron, local agent there for Mr Graham of Gartmore. The eldest of the two was Robert Graham Gordon, big, burly, good humoured & funny, a great favourite. Wrote a fine swift hand, and was a general clerk. Dress, a light grey long coat, with over- sized buttons, drab knee breeches & “spatter dashes”, or long loose drab gaiters reaching to the knee, flashy waistcoat, & white neck cloth. A great laugher, and full of stories. 5. The brother of this hero was William Cunninghame Graham Gordon the very opposite of his brother Bob. Tall, thin & Skantty; face covered with “fernticles”;5 large mouth, wore a great profusion of rat-coloured hair. Cold and pernickety. He was the bookkeeper, and sat at a desk by himself with the ponderous Day Book, Journal & Ledger. Wrote a fine hand, & was an excellent clerk, but too stiff for the junior. Dress, a long brown coat with brass buttons Green tartan trousers tied at the ankles with green ribbon but rather short, as if he had grown from them, for when he stood up they bulked greatly at the knee as if glad of relief from the chirting.6 A blue neck cloth. When the tartan became positively exhausted we were all surprized one fine morning when he walked in with top boots & knee breeches. The boots creaked cruelly, when he moved about, so much so that he used to pull them off & thrust them into a closet, substi- tuting carpet shoes till he was going home. Much quizzing took place at this transmogrification.
5 “Fernticles” means freckles. 6 “Chirting” means pressing or squeezing.
6. James Johnston, Senior apprentice. A very handsome, good looking youth, aged about 20. Son of a respectable old tanner in Duke Street. Quite a gentleman. He was long in mourning, from successive deaths of relations. Wrote a beautiful hand, and his duty was to attend the Courts. Dress, a full suit of black. The coat, had little or no collar, like those worn at Court in London; knee breeches, and black silk stockings, which showed off his well formed limbs; buckles at the knee; and longer ones on his well polished shoes; white neckerchief, and breast frills “small plait”, with black silk gloves, ebony cane, silver tipped, & a fashionable tall hat, with crape. He was a thorough dandy, and his hands and figure and tasteful dress are vividly before me. He was one of my favourites. Poor fellow he died in early life, soon after beginning business on his own account, but I don’t forget him. 7. William (or as I always called him, kindly, “Willie”) Robertson. He was the second senior apprentice. Son of old James Robertson, bleacher at Crossburn on the road to Drymen. He had previously been a companion of mine at College, when we were in old Professor Richardsons Latin class, and it was a great pleasure to me, to meet him again in Mr Ballingalls office as a fellow apprentice. He was about two years my senior. A fine looking youth of about 17; aquiline nose; rosy; always happy, & a general favorite [sic]. His duty was to attend to the procedure in “Summary Cases”, and report constantly their position, to the Chief Clerk. For this purpose he had a small book with a page for each case, with the name of the opposite agent, and he went every forenoon to the […7] examined the Court Books wherein the different steps in each case were entered by the Court official & transferred into his own little book what he there found recorded; looking after the opposite agent to see that he did not keep the case in his hands beyond the proper time, but if he did, then force it out of his hands under a process – Caption. Besides this he assisted in transcribing pleadings, &c. His dress was a dark blue coat with small brass button, parti-coloured vest, dark grey trousers & Wellington boots. A buff coloured neck cloth tied with a neat bow, yellow gloves, & a cane. He starts back into my memory as if only yesterday. We sat side by side at the same large double desk. William Gordon, No. 5, with the Ledger being our vis a vis, and having the whole side to himself, and the talk also. Latterly Mr Robertson took up his fathers business on the death of the latter, and relin- quished the law entirely. We were firm friends throughout life, and when he died on 26 Mar: /608 at his villa of Rosebank Partick aged 61, I was one of his testa- mentary trustees, and held one of the cords in lowering this my early friend into “the narrow house”, in the picturesque church yard of New, or East Kilpatrick.
7 A line of missing text here due to the top of the page having been cut. The first words may be “sheriff court”. 8 26 Mar. 1860.
8. John Buchanan. Junior apprentice, of whom it does not become me to say much, except that he wore a pea green, fashionably made swallow-tailed coat with flaps and brass buttons; buff vest; Waterloo blue trousers; Wellington-boots with straps; neck cloth, white ground with lathe-coloured dots, tied into a smart knot; no ruffle, but a breast pin; chamois leather gloves and a cane. He had much to do at first, with the Letters, & Letterbook, and helped No. 7 with great good will.
Such was the Ballingall staff, when I first entered. Alas, I am now the only survivor of the 10, who met there every day. Of course during my apprenticeship changes took place among the Business staff, till at last No. 5 & I were the only pair left. Sic transit, &c. Mr Haddin No. 1; Allan Jack No.3, and I were the only three who became members of Faculty, and I was the only Notary, neither Nos 1 or 3, having taken that Degree.
No. 11. Partnership agreement, James Fair and Andrew Lookup, Jedburgh. sba, SC/R/76/1/23, 15 Mar. 1773.
It is contracted and finally agreed between James Fair and Andrew Lookup writers in Jedburgh as follows vizt. The said parties considering that it would tend to their mutual advantage to unite in carrying on business rather than carrying it on upon separate interests Do therefore by these presents enter into company and copartnerships with reference to their several Professions and employments of Writer, agent and Procurator for the full and compleat space of six year from and after the date hereof, During which space Both parties severally Bind and Oblige themselves faithfully and carefully to attend to the execution of all business either jointly or separately undertaken and to be mutually aiding and assisting therein when not employed by Clients of contra-inter- ests in the same affair. And in respect of the said James Fair’s greater practice and establishment in business It is agreed that the said Andrew Lookup is to have one third part of all the Fees, Free profits and Emoluments arising from all and whatsomever business both or either of them jointly or separately shall undertake the management of either as writers, agents Factors clerks or Procurators (the Clerkship of supply excepted allenarly) the said James Fair being intittled [sic] and having a Right to receive the other two parts of all such Fees profits or emoluments and by these proportions the said parties after discounting all expences necessarly laid out by either in the execution of Business are hereby bound and obliged to communicate and account to one another. And for rendering said accounting [2] the more certain and distinct the said parties do further oblige themselves to keep or cause to keep fair and regular entries in Books of accompts of all Business performanced or transacted by either of them and of all cash paid out or Received thereanent from all and very person whatsomever; and properly
James Fair Andrew Lookup Andrew Lookup witness Joseph Davidson witness Andrew Reid witness
Dorse: Contract of copartnery Between James Fair writer in Jedburgh And Andrew Lookup Writer there 1773
No. 12 Sebastian Henderson petition, 1755.
Linlithgow, 4 April 17559
Unto Mr John Gillon off Wellhouse Advocate Sheriff Depute of the Sheriffdome off Linlithgow and Bathgate
The Petition of Sebastian Henderson wri[ter] in Linlithgow
Humbly Sheweth
That your Petitioner haveing [served] an Apprenticeship as a writer to the Deceist James Russell writer in E[dinburgh] which is not only knowen to your Lo[rdship] But to Thomas Smith Depute Clerk of [court]
As your Petitioner and Famely [sic] Resides [in] the burgh of Linlithgow, I propose to [serve] the Ledges, as acting as a Procurator Before your Lordships Courts.
In the year 1724, I was received and acted as a procurator off Court, when Captain Walter Hamilton off West Port was Sheriff Depute of the shire. But by reason of other business, I layed the writer Business aside since that time; But as the Law now Directs that all Persons acting in th[at] capacity, as ane Procurator before a[ny] off the Sheriff Courts in Scotland, sho[uld] take the Oaths to the Goverment as [pre-]scribed by Law, which I am most [happy] to doe
May it Therefore Please [your] Lordship, to admit and receive [me] as a Procurator before your Lor[dship’s] Courts, and to Ordain the Cler[k of] Court, to Administer to me the Oa[ths] to the Present Government, as the La[w] Directs, and Your Lordships Answer
Seb[astian] Henderson
Dorse: Linlithgow Aprile 4. 1755 The sheriff admits the Petitioner a pro[curator] before the sheriff courts of this county he having taken the oaths prescribed by law & given his oath de fideli administratione
9 nrs, Sheriff court book of Linlithgow, sequestrations, SC41/31/1. This document is readable, though somewhat damaged.
Jo: Gillon Sh[eriff] Dep[ute]
No. 13. Oaths of allegiance and abjuration, Wick sheriff court, no date (c. 1755) nrs, SC14/65/4
I Doe sincerely Promise and swear that I will be Faithfull and bear true Alledgeance to his Majesty King George the Second So help me God James Mathison Hugo Campbell10 Hugh Ross John Gibsone Andrew Taylor11 Murdoch Campbell12 John Adam13
I do truly and sincerely Profess Testify and Declare in my conscience before God and the World, That our Sovereign Lord King George the Second is lawfull and Rightfull King of this Realme and of all other his Majesty’s Dominions and Countreys there- unto belonging And I doe solemnly and sincerely Declare that I doe believe in my conscience, that the person pretended to be Prince of Wales, during the life of the late King James, And since his decease pretending or taking upon himself the Stile of the King of England by the name of Jams the third, or of Scotland, by the name of James the Eight, or the Stile and Title of King of Great Brittain; Hath not any right or title whatsoever to the Crown of this Realme, or any other the Dominions thereunto belonging: And I doe Renounce, Refuse and Abjure any Alledgance or obedience to him. And I doe swear that I will bear faith and true Alledgeance to his Majesty King George, And him will defend to the outmost of my power Against All Traiterous con- spiracys and attempts whatsoever which shall be made against his Person Crown or Dignity, And I will doe my outmost endeavour to disclose and make known to his Majesty and his successors all Treasons and Traiterous conspiracys, which I shall know to be against him or any of them. And I doe faithfully promise to the outcmost of my power To support maintain and defend the succession of the Crown against him the said James, and all other persons whatsoever, which succession by ane act entitled “An Act for the Further Limitation of the Crown and better secuding the Rights and Liberties of the Subject”, is and stands limited yo the Princess Sophie
10 Finlay, ed. arnp, I, no. 1397. Commissary clerk of Caithness. 11 Ibid., no. 1282. Writer in Thurso, adm. n.p. 1747. 12 Ibid., no. 1287. Writer in Thurso, adm. n.p. 1747. 13 Ibid., no. 2118. Writer in Thurso (father of George Adam, notary public).
Electress and Dutchess Dowager of Hannover And the heirs of her Body, being Protestants. And all these things I doe plainly and sincerely acknowledge and swear, according to these express words by me spoken, and according to the plan and com- mon sense and understanding of the same words, without any equivocation mental evasion, or secret reservation whatsoever. And I doe make this Recognition, acknowl- edgement, Abjuration Rennunciation and promise heartily willingly and truly upon the true faith of a Christian So help me God (signed) Hugo Campbell Hugh Ross John Adam Andrew Taylor John Gibsone Murdoch Campbell James Mathieson
No. 14. Regulations for the procurator fiscal in Edinburgh, 1807 eca, Edinburgh tcm, SL1/1/150, fos 3–8.
{Regulations for the office of Procurator Fiscal}
The Committee, named last sederunt, to consider the Motion by the Lord Provost, for enquiring into the state of the office of Procurator Fiscal for this City, and to consider the fees and duties of this office and the Regulations proper to be adopted in regard to it, gave in a Report on that business, which was read and is of the following tenor. 26 October 1807. The Duty of the Procurator Fiscal of a Burgh, or indeed any other Procurator fiscal is to prosecute ad vindictam publicam in all petty riots, thefts, and offences against any penal statutes & c. all actions which involve pains and penalties against the offender as well as damages to the sufferer, are either brought at his instance or by the private party with his concourse, and altho’ he cannot be compelled to give his instance he cannot refuse his concourse. The persons appointed to this office in Burghs generally act also as the Agents for the Community in all processes in which they are interested before the inferior courts; so that the business of this officer in the City of Edinburgh may be classed under two heads 1st That which properly belongs to him in his capacity of public Prosecutor and 2dly The private business (if it can be so called) of the community. It appears to the Committee to be the practice at present for the Procurator fiscal to institute actions ad vindictam publicam either of his own authority or on the verbal suggestion of some of the Magistrates, and in addition to his salary, and the full regulation charges for all business, he claims one third of all fines which he divides with the clerks of court. But as the Committee conceive it to be the meaning of the Council in making the remit to them that their attention should be
Which Report having been considered by the Magistrates and Council, they approved thereof, and appointed the Regulations therein contained to be adopted as the Rule by which the Procurator fiscal of this city is to conduct himself in all time coming, until the same shall be varied, altered or rescinded in whole or in part.
14 The Bridewell was the house of correction, the foundation stone for which was laid in Nov. 1791: eca, Edinburgh tcm, SL1/1/118, fol. 360.
No. 15 Agreement between Andrew Anderson and Alexander Laing, 1779 nrs, CS230/L/3/1
Aberdeen 8 June 1779
Dear Sir or Madam:
I hereby agree to call at Lodgings in Aberdeen every day between the hours of nine and eleven o clock forenoon to see if you have any thing to do in the way of writing and if any thing occur throughout the day I am to attend you at any Hour upon you sending notice my lodgings if I be at home or can reach you at the time and I oblige myself to agent your processes and copy over any writings which you may have to do for the space of one year from this date providing it be always understood that I am not to advance any money on account of the matters in which you are concerned for which you are to pay me four pounds sterling yearly viz Two pounds at Martinmas first and two pounds at Whitsunday mvij & eighty and I am Sir Your most humble servant (Signed) Alex Laing
I William Jamieson Notary Public Do hereby Certify that the above is an exact copy of a Letter of agreement Entered into betwixt Alexander Laing & Andrew Anderson, the same having been compared with the original and found to agree therewith At Aberdeen the Twelfth day of August one thousand seven hundred & eighty Before these witnesses William Kennedy writer in Aberdeen and John Smith Town serjeant there (signed) Will Jamieson N.P. W. Kennedy witness John Smith witness
Manuscript references, and citation of Session Papers, are not included here but are given as they arise in the footnotes in each chapter. Record depositories are noted in the Abbreviations.
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PhD Theses/LLM Dissertations
Brown, David J. “Henry Dundas and the Government of Scotland.” PhD diss., University of Edinburgh, 1989. Baston, Karen G. “The library of Charles Areskine (1680–1763): Scottish lawyers and book collecting, 1700–1760.” PhD diss., University of Edinburgh, 2011. Ferguson, William. “Electoral law and procedure in eighteenth and early nineteenth century Scotland.” PhD diss., University of Glasgow, 1957. Goodare, Julian. “Parliament and Society in Scotland.” PhD diss., University of Edinburgh, 1989. Hepburn, Jasmin K., “A lawyer and his clients: David Erskine and the Stirlings of Keir.” llm diss., University of Edinburgh, 2011. Scott, Richard. “The politics and administration of Scotland 1725–1748.” PhD diss., University of Edinburgh, 1981. Watt, Douglas. “Chiefs, lawyers and debt: a study of the relationship between Highland elites and the legal profession in Scotland c.1550 to 1700.” PhD diss., University of Edinburgh, 1998. Wilson, Nan. “The sociology of a profession: The Faculty of Advocates.” PhD diss., University of Edinburgh, 1965.
Abercrombie, Alexander, adv. 6, 143 Baird, Thomas W., adv. 4 Adam, John, architect 305 Barclay, Andrew, factor 96 Adam, William, adv. 82 Barclay, James Robertson, ws 314 Adam, William, architect 70, 109 Barclay, John, fiscal in Tain 349, 356, 358 Afflictis, Matthaeus de 194 Bartolus de Sassoferrato 153, 166, 174, Airlie, earl of 114 308, 388 Aiken, Rob, writer in Ayrshire 256 Barton, Benjamin, writer in Glasgow 267 Ainslie, Alexander, writer in Jedburgh 56, 57 Bean, George, advocate in Aberdeen Ainslie, Henry, writer 131 159n, 160 Ainslie, John, town clerk of Haddington 389 Beaton, William, adv. 196 Alciatus, Andrea 174 Beccio, Francesco 190 Alexander, George, adv. 351 Belleperche, Pierre de 173 Alexander, Hugh, apprentice writer in Bell, George Joseph, adv. 118n, 120, 285, 401 Glasgow 403 Bell, Michael, town clerk of Linlithgow 376 Alexander, James, np in Dunfermline 309, 381 Bennet, Charles, sheriff-depute of Alexander, John, of McKilston 39 Stirling 25n, 261 Alison, Archibald, adv. 199 Bennet, Robert, adv. 25n, 197 Alison, Robert, writer in Edinburgh 64, 282 Berlich, Matthias 155n, 190 Alison, Robert, jun., writer in Edinburgh 64 Beveridge, James, fiscal in Dunfermline 332 Allan, Harry, litigant 94 Beveridge, James, writer in Edinburgh; Alston, William, writer in Edinburgh 90, 121 fiscal 299, 300n, 301n Alves, John, writer’s clerk 121, 393 Black, William, writer in Dunfermline Amicis, Giovanni de 105 164, 184n, 383 Anderson, David, writer in Edinburgh 40 Blackwood, Robert, adv. 219 Anderson, John, writer in Glasgow 21, 27, Blair, Alexander, of Kinfauns 67 100, 125, 387, 403 Blair, John, apprentice 257 Anderson, William, ws 16 Blair, John, agent in Edinburgh 314 Andreae, Johannes, canonist 173 Blair, Robert, adv., scj 48, 57, 313, 328, Angus, John, grocer in Glasgow 368 336, 358 Anstruther, John 84 Bogle, John, ws 302 Aquinas, Thomas, theologian 155, 189 Borthwick, James, adv. 196 Areskine, Charles, of Tinwald, adv., scj Boswell, Alexander, of Auchinleck, adv., scj 42, 44, 80, 81, 91n, 141, 149, 156, 180n, 327, (Auchinleck) 57, 166, 220, 384n 374, 375 Boswell, James, of Auchinleck, adv. Armstrong, David, adv., sheriff-depute 4, 54, (adm. 1698) 157, 166 150, 184, 241 Boswell, James, of Auchinleck, adv., Arniston, see Dundas of Arniston (adm. 1766) biographer 31n, 39, 46, 57, Arnot, George, brewer 14, 15 70n, 76, 282, 385 Azo, jurist 194 Boswell, John, of Balmuto, writer in Edinburgh 298 Baillie, George, fiscal in Dingwall 378 Bourits, Jacques van, author 12n, 73, 105, 156, Blfour, James, of Pilrig 273 159, 194 Balfour, James, ws 326 Boyd, Robert, prisoner 162 Ballantyne, James, procurator in Boyle, David, adv., scj 236 Ross-shire 232 Boyle, Patrick adv., scj 12
Braids, James 18 Carnegie, James, writer in Edinburgh 318 Brisbane, James, adv. 196 Carocci, Vincenzo 190 Brodie, Thomas, writer in Edinburgh 64 Caron, Louis le 373 Brown, Alexander, of Bassindean 69 Cassilis, earl of 54 Brown, James, adv. 196 Catanach, James, civilist in Aberdeen 254 Brisson, Barnabé, avocat, author 9 Chambers, William, author 76 Bruce, Adam, adv. 199 Chalmer, James, writer in Edinburgh 54 Bruce, Burnet, adv. 199 Chalmers, James, solicitor in London Bruce, Robert, adv., scj (Kennet) 50, 118, 284, 313 273, 310 Chalmers, William, town clerk of Brunnemann, Johannes 153, 387 Dundee 301, 321n Bryce, William, sheriff substitute of Chapman, John, writer in Glasgow 375 Stirling 167n, 272, 273 Christie, Alexander, agent for the earl of Buchanan, John Gabriel, lld, writer in Wemyss 149 Glasgow 28, 29, 30, 47, 56, 129, 130, 245, Christie, Alexander, writer in 267n, 275, 307, 360, 401, 402, 405n, 407, 410 Berwickshire 18 Buchanan, John, writer in Kirkcudbright 6 Christie, Thomas, town clerk of Stirling 272 Buchanan, John, writer in Glasgow and dean Christie, William, deacon in Glasgow 49 of Faculty 263, 321n, 329 Chrystal, James, writer in Stirling 8, 147 Buchan-Hepburn, George, admiralty Clark, James, writer in Dumfries 254 judge 238 Clark, John, advocate in Aberdeen 121, 393 Burn, John, writer in Stirling 211 Clark, John, writer in Dumfries 121, 240 Burnes, Robert, fiscal in Stonehaven Clarke, Allan, writer in Edinburgh 303 323, 338 Cleland, James, fiscal in Linlithgow 348 Burnett, John, writer in Stonehaven 371 Clerk, William, of Eldin, adv. 41 Burnett, William, commissary of Clerk, William, writer in Dumfries 137, 140 Aberdeen 169 Cochrane, James, of Hill, complainant 176 Bushby, John, writer in Dumfries 37n, 167n, Cockburn, George, adv., sheriff-depute 179, 240, 241, 243 294, 322 Cockburn, Henry, adv., scj 285, 323, 356 Cadell, William, writer in Edinburgh 101 Cockburn, John, writer in Duns 240 Cajetan, Thomas (Gaetanus), cardinal 188 Colquhoun, James, merchant in Glasgow 374 Cameron, John, of Fassifern, litigant 63, 86, Colville, John, writer in Arbroath 181 87, 173 Colt, Adam, adv. 293 Campbell, Archibald, ws 48–9 Comrie, Patrick, factor 65 Campbell, Duncan, writer , commissary in Connell, John, adv. 55 Inveraray 47, 101, 135, 148, 161, 176, 182, Corbet, Robert, adv. 40, 311 214, 335, 387 Corrie, Hugh, ws 301, 311 Campbell, Hugh, agent 41 Couper, David, writer in Edinburgh 96, 100 Campbell, Ilay, adv., scj (Succoth) 76, 163, Covarrubias, Diego de 188, 190, 191n 290, 291, 292, 312, 368, 391n Craig, Thomas, of Riccarton, adv. 145, 195, Campbell, John, of Drumnamucklach 101 196, 220 Campbell, John, writer in Stirling 145, 221 Craig, William, writer in Galashiels 96 Campbell, John, ws 47 Craigie, John, of Kilgraston, adv. 149, 178, 295 Campbell, John, jun. ws 145 Craigie, Laurence, of Kilgraston, adv. 55, 63, 73 Campbell, Robert, of Asknish, adv. 41 Craigie, Robert, of Glendoick, adv., hma, scj Campbell, Robert, of Balvie, fiscal 355 42, 43, 59, 73, 77n, 78, 79, 106, 149, 151, Campbell, Sir Duncan, of Glenorchy 374 293, 299, 300, 388n, 399 Cant, John, town clerk of Inverkeithing 379 Craw, John, fiscal in Berwickshire 323
Crawford, Hew, ws 64, 85, 303 Dillon, John, agent in Edinburgh 247 Crawford, Hugh, writer in Glasgow 321n, 375 Din, David, litigant 53 Crawford, William, np 374 Din, James, litigant 52, 53 Crawfurd, Ronald, ws 38 Dinning, John, writer in Glasgow 235, 245 Crombie, Archibald, town clerk of Douglas, George, adv. 51 Jedburgh 381 Douglas, George, writer 102 Crosbie, Andrew, adv. 40, 46, 47, 202, 203, Douglas-Hamilton, John, earl of Selkirk and 204, 292, 297, 299, 300, 311, 356n Ruglen 81 Crosse, William, adv., sheriff-depute 261 Dow, Harry, writer in Edinburgh 61 Cumming, David, np and fiscal in Dow, Harry, writer in Stirling 268 Inverness 372, 389 Drummond, Lady Mary 81 Cumming, James, np in Inverness 383 Drummond, Robert, np 259, 388 Cumming, Robert, writer in Inverness 383 Drummore, see Dalrymple, Hew Cunningham, Alexander, ws 102 Duff, James, adv. in Aberdeen 159 Cunningham, David, of Milncraig, adv. 292 Duff, James, sheriff clerk of Banff 18 Cunningham, George, procurator and fiscal in Duff, William, Lord Braco 70 Linlithgow 238, 323, 332 Dun, John, writer in Edinburgh 397 Cunningham, George, surgeon 224 Dun, Lord, see Erskine, David Currie, George, adv. 292 Dunbar, Ronald, ws 86, 355 Cutlar, Edward, writer in Edinburgh 91, Duncan, Alexander, writer; depute town clerk 107, 301 of Edinburgh 301, 316 Duncan, George, ws 301 Dagge, Henry, barrister 16 Dundas, Henry, adv. 24, 45, 46, 97, 256, Dalgleish, David, fiscal in Dunfermline 324 300, 312 Dalrymple, Charles, of Langland 393 Dundas, James, clerk 127 Dalrymple, Charles, of Orangefield, sheriff- Dundas, James, of Philpstoun, adv. 41, 51, clerk of Ayr 125 292 Dalrymple, David, of Westhall, adv. Dundas, John, ws 303, 315, 355 (1743) 45, 158 Dundas, Robert, adv. (adm. 1708), scj Dalrymple, Sir David, of Hailes, adv. (1688), (Arniston ii) 54, 60, 66, 80, 198, 312, hma 198, 312 375, 379 Dalrymple, Sir David, of Hailes, adv. (1748), Dundas, Robert, adv. (adm. 1738), scj scj (Hailes) 60, 182n, 282 (Arniston iii) 59, 60n, 109, 293, 312 Dalrymple, Hew, adv. 50 Dundas, Robert adv. (adm. 1779), Chief Dalrymple, Sir James, of Stair 105, 106 Baron 60, 80 Dalziel, John, messenger 103 Dundas, Sir Laurence 36 Davidson, Henry, solicitor 128, 313 Dundas, Thomas, fiscal in Linlithgow 332 Davidson, John, ws, crown agent 90, 126, Durand, Guillaume, canonist 153, 187, 193 148, 302, 338n, 339n Durno, John, adv. in Aberdeen 247 Deuchar, Andrew, writer in Edinburgh 375 Dick, Robert, adv. 59 Easton, John, writer in Linlithgow 211 Dick, William, litigant 347 Edgar, James, writer in Edinburgh 97 Dickson, Charles, adv., solicitor-general 200 Edgar, John, adv. 196 Dickson, David, writer in Edinburgh 68, 375 Eidington, Gilbert, writer in Inveraray Dickson, George 220 157, 350 Dickson, John, adv. 219 Eiston, James, writer in Linlithgow 249 Dickson, John, messenger in Elliot Cornelius, ws 16 Lochmaben 103, 371 Elliot, Robert, farmer 13 Dickson, John, writer in Edinburgh 246 Elliot, William, agent in Edinburgh 89, 112, 304
Elphinstone, Alexander, of Glack, adv., Fraser, Simon, Lord Lovat 32, 42, 44, 45, 48, sheriff-depute 79n, 97, 169, 212, 266 64, 65n, 79, 81, 185, 221, 390, 391, 396 Emmond, John, litigant 94 Fraser, William, sen. of Balnain, ws 60, 63, Erskine, Charles, barrister 44, 81n 86, 114n, 170, 221 Erskine, David, of Dun, adv., scj (Dun) Fraser, William, jun. of Ford, ws 42, 79n, 165, 222 149n, 150, 390n, 391n Erskine, David, ws 126, 149 Fraser, William, jun., writer in Inverness Erskine, Henry, adv. 393 150, 378 Erskine, James (Lord Grange), adv., scj Frederick ii, king of Prussia 285 4, 113, 157, 379 Fyffe, Alexander, ws 270 Erskine, James, adv. 44n Gail, Andreas 188, 189 Fair, James, town clerk of Jedburgh 130, 384, Garden, Francis, adv., scj (Gardenstone) 410, 411 40, 99, 170, 218 Fall, George, town clerk of Dunbar 307 Gilbert, Thomas, adv. 195 Farinacci, Prospero 154, 172, 173, 174 Gilkie, James, writer in Edinburgh 51, 138, Farquharson, Alexander, ws 64, 197n 177, 215n, 221, 240, 369, 371, 386, 396 Ferguson, Alexander, of Isle, adv. 4, 74, 81n Gillon, John, adv., sheriff-depute 41, 249 Ferguson, James, of Pitfour, adv., scj (Pitfour) Gilmour, John, adv. 196 54, 59, 60, 86, 165, 218, 221, 222, 382n Gloag, Robert, procurator 159n Fergusson, George, of Hermand, adv., scj Gloag, William, adv. 200, 220 (Hermand) 40, 301, 384 Goldie, Thomas, writer in Dumfries 95, 129 Fergusson, Sir Adam, mp 394 Gordon, Charles, see Hamilton-Gordon, Fergusson, Marion 172 Charles Ferrier, James, ws 101, 148 Gordon, Cosmo, of Cluny, adv. 150, 315, 356n Ferrier, John, writer in Linlithgow 173 Gordon, John, of Craig, adv. in Finlay, John, litigant 115 Aberdeen 178, 263 Finlayson, Alexander, writer in Gordon, John, agent 171 Edinburgh 302 Gordon, John, of Auchanachy, client 90 Fletcher, Andrew, adv., scj (Milton), ljc Gordon, John, fiscal in Banff 322 46, 56, 90, 108, 121, 156, 176, 272, 278, 327, Gordon, Robert Graham, writer in 328, 383 Glasgow 408 Forbes, Alexander, adv. in Aberdeen 121 Gordon, Robert, writer in Dumfries 282, Forbes, David, agent in Edinburgh 89, 291 356n, 370 Forbes, Duncan, of Culloden, adv., scj 42, Gordon, Sir Robert, of Gordonstoun, 54, 81n, 125, 149, 220, 294, 310 , 312, 391 litigant 85, 150 Forbes, George, adv. in Aberdeen 225n, 285 Gordon, Sir William, of Invergordon 185 Forbes, George, agent in Edinburgh 107 Gordon, William Cunningham Graham, Forbes, Hugh, pcs 222, 294, 314, 337, 351 writer in Glasgow 408, 409 Forbes, Sir William, banker 48 Gordon, William, procurator in Banff 25 Forbes, William, adv., professor of law Graeme, Hugh, writer 58 171, 345n Graeme, Mungo, of Gorthy, factor 53, 58, 325 Forbes, William, agent 65n Grainger, John, ws 78 Forrest, Joseph, writer in Dunbar 365, 387 Graham, David, adv. 298 Forrester, Robert, writer in Linlithgow 249 Graham, James, adv., of Airth 10, 32, 33, 34, Forsyth, Robert, adv. 4 41, 51, 52, 53, 63, 78, 149, 261, 296, 308, Fountainhall, Lord, see Lauder, Sir John 313, 324, 325, 351 Fraser, Alexander, of Strichen adv., scj Graham, James, adv., of Buchlyvie 78n, 261 (Strichen) 45, 121, 366 Graham, James, of Kilmannan, litigant 52, 66
Graham, James, duke of Montrose 52, 53, Hamilton, duke of, see Hamilton, James; 58, 78, 272, 273, 324, 325 Hamilton, James George Graham, James, ws 55, 56n, 299n, 301 Hamilton, Gavin, np 374 Graham, Mary 10 Hamilton-Gordon, Charles, of Newhall, Graham, of Birdston, 34, 25 adv. 142, 156n, 165, 254, 294 Graham, Archibald, writer in Glasgow 133 Hamilton, James, 5th duke of Hamilton Grahame, Robert, writer in Glasgow 137, 17, 149 146, 147, 395, 397, 403 Hamilton, James, 6th duke of Hamilton 34 Grahame, Thomas, writer in Glasgow 29, Hamilton, James George, 7th duke of 148, 255n Hamilton 34n Grahame, James, apprentice writer, adv. Hamilton, James, of Olivestob, adv., 29n, 78, 254, 255n sheriff-depute 308 Grange, Lord, see Erskine, James Hamilton, John 144, 353 Grant, Duncan, writer in Inverness 332 Hamilton, John, apprentice in Grant, John Peter, adv. 222 Glasgow 403 Grant, John, writer in Edinburgh 175 Hamilton, Robert, sheriff-depute of Grant, Patrick, of Elchies, adv., scj 41 Lanarkshire 273n, 274 Grant, William, of Prestongrange, adv., scj Hamilton, William, London agent 38, 60 41, 48, 58, 61, 71, 72 (illust.), 108, 233, Hamilton, William, commissary of 296, 298, 312, 396 Lanarkshire 288 Gray, Alexander, crb agent in Harlaw, James, ws 195 Edinburgh 314, 315n Haswell, John, town clerk of Jedburgh 381 Gray, James, writer in Dunbar 364, 365, 387 Hay, Alexander, in Nairn 32 Gray, John, ws, town clerk of Edinburgh, crb Hay, Alexander, adv., 51, 222 agent in Edinburgh 314, 316n Hay, Charles, of Newton, adv., scj Gray, John, np in Haddington 389 (Newton) 304 Gray, Robert, fiscal in Edinburgh 129n, 229n, Hay, Charles, debtor 186 331, 346, 355 Hay, James, writer in Edinburgh/ws 68, 119, Gray, Samuel, fiscal in Edinburgh 330 258, 259n Gray, Thomas, adv. 195 Hay, Thomas, adv. 13, 40 Grierson, Thomas, writer in Edinburgh 40, Hay, William, np 355 301 Hay, William, ws 218 Grierson, Sir William, client 240 Henderson, Richard, ws 302 Gray, William, writer in Edinburgh 13 Henderson, Sebastian, writer in Greig, George, town clerk of Fortrose 259, Linlithgow 411, 412 378, 279 Henryson, Edward, adv. 220 Greenshields, John, adv. 259 Henryson, James, adv., hma 192 Guthrie, Alexander, writer in Edinburgh 39 Hepburn, Robert, agent in Edinburgh Guthrie, Henry W., adv., scj 200 39, 308 Heriot, John, sheriff clerk of Haddington 18 Haddin, James, writer in Glasgow 407 Hewat, Peter, ws 195 Haddoway, Thomas, brewer 14, 15 Higgins, Alexander, adv. 351 Hair, Ivie, np 387 Higgins, Archibald, writer in Dunbar 11, 40, Halket, Peter, of Pitfirrane 380 321, 322, 331, 354, 365, 366, 367 Hamilton, Alexander, jun., of Pencaitland, Hill Burton, John, historian 42 ws 85, 89, 261 Hill, James, dean of the Faculty of Hamilton, Anne, 3rd duchess 33 Procurators 274 Hamilton, Daniel, ws, sheriff substitute Hill, Laurence, ws 368 111, 274 Hodgeart, Allan, weaver 185
Home, Alexander, fiscal in Edinburgh 330 Kerr, Hugh, sheriff substitute in Home, Andrew, adv. 197 Paisley 406 Home, Henry (Lord Kames), adv., scj Kibble, James, writer in Paisley 256 12, 33n, 59, 62, 77, 92, 180, 183, 203, 277, Kilgour, Robert, apprentice 389 278, 366, 396 King, Alexander, adv., fiscal in Home, Henry, ws 40, 366n Edinburgh 350 Hope, Archibald, admiral depute 289 Kinross, Henry , adv. 350 Hope, Archibald, writer in Edinburgh 86 Knox, Hugh, writer in Glasgow 247 Hope, Thomas, of Craighall, adv., hma 292n Knox, John, ws 270 Horn, James, ws 304 Houston, Archibald, ws 66 Laycock, John, inventor 16 Huber, Ulric 166 La Font, Pierre, merchant 16, 17 Hume, Alexander, fiscal in Berwickshire 323 Laing, Alexander, writer in Aberdeen 86, Hume Campbell, Alexander, adv. 81 242, 243, 416 Hume, Joseph, adv. 11 Laing, James, clerk of the Canongate 27 Hunter, Dr Andrew, of Barjarg, client 95 Laing, Malcolm, adv. 199 Hunter, John ws 40, 301 Lang, David, writer in Glasgow 248 Hunter, Robert, adv. 199 Lauderdale, earl of, see James Maitland Hunter, Thomas, ws 171 Lauder, Sir John, of Fountainhall, adv., scj Hutchison, Andrew, town clerk of (Fountainhall) 65, 142, 220 Burntisland 378, 381 Law, John, adv. in Aberdeen 212n Hutchison, David, writer in Glasgow 325, Law, John, forger 404 404 Leckie, Robert, writer in Stirlingshire 32, 33, 34, 35, 36, 37, 38 Inglis, Alexander, sheriff-substitute 232 Leslie, James, sen, writer in Edinburgh 65, 137 Inglis, Robert, fiscal in Edinburgh 331 James Leslie, writer in Edinburgh 112 Innes, Charles, ws 86 Lind, Alexander, commissary of Innes, Gilbert, of Stow 171 Glasgow 329 Innes, John, adv. 198 Lindsay, David, of Edzell, client 89 Innes, John, ws 141 Lindsay, George, town clerk of Edinburgh, Innes, Robert, agent 26 preses of the crb 315, 316, 330 Innes, William, litigant 218, 219 Lindsay, George, of Wormiston, commissary Innes, William, ws 85, 138, 150 of St Andrews 289 Irving, George, ws, town clerk of Edinburgh, Lindsay, John, of Wormiston, adv. 289 agent for the crb 310, 314 Lindsay, John, writer in Dumfries 177 Little, William, writer in Peebles 377, 378n Jack, Allan, writer in Glasgow 408, 410 Lockhart, Alexander, adv., of Craighouse, scj Jamieson, Robert, ws 304 (Covington) 41, 44, 47, 51, 55, 59, 63, 87, Jamieson, William, np 416 90n, 91, 97, 110, 117, 144n, 150, 165, 176,, 218, Johnston, George, litigant 203 240, 287, 298, 300, 319, 345, 357 Johnston, James, writer in Glasgow 409 Lockhart, George, of Carnwath 65 Johnstone, Agnes, litigant 218 Lockhart, Katherine 136 Johnstone, William, adv. 184, 290 Logan, Robert, apprentice 173n, 259, 379 Logie, John, adv. 195, 196 Kellie, John, fiscal in Linlithgow 211 Longlands, Thomas, solicitor in London 313 Kelly, James, merchant in Dunbar 307, 308 Lookup, Andrew, town clerk of Kene, John, ws 195 Jedburgh 130, 131, 132, 377, 410, 411 Kennedy, David, adv. 17 Lorain, James, writer and sheriff clerk 16
Lovat, see Fraser, Simon Macpherson, William, litigant 382 Lumsden, John, ws 32 Macpherson, William, ws 84, 270, 271 Lumsden, John, litigant 178 Maitland, Charles, adv. 49 Lumsden, Michael, adv. 197 Maitland, James, 7th earl of Lauderdale 56 Lundie, James, litigant 217 Manson, Thomas, writer in Edinburgh 295 Marshall, Claud, writer in Glasgow 157 Macdonald, Duncan, writer in Martin & Wotherspoon, printers 102 Edinburgh 67, 290 Martin, John, petitioner 27, 28 MacGibbon, John, sheriff clerk of Mascardi, Guiseppe 180, 375 Stirling 273 Mathie, Thomas, forger 80 Macgill, David, adv., hma 195 Maule, Harry, writer 113 Mackenzie, Alexander, adv., of Delvine 75 Maule, John, baron of exchequer 223 Mackenzie, Alexander, minister, litigant 217 Maxwell, David, of Balmyle, adv. 302 Mackenzie, Alexander, of Corrie 337 Maxwell, John, adv. 159 Mackenzie, Alexander, of Fraserdale 42 Maxwell, John, fiscal in the Gorbals 323, Mackenzie, Alexander, writer in 343, 404 Inverness 383 Maxwell, Sir John, of Pollok 41, 64 Mackenzie, Alexander, ws 120 Maxwell scj (Pollok) 52 Mackenzie, Andrew, ws 66 McAlester, Alexander, writer in Mackenzie, Colin, writer in Dingwall 378 Campeltown 20, 67, 103n Mackenzie, Donald, litigant 217 McArthur, James, litigant 214 Mackenzie, John, of Delvine, adv. 48, 281 McAulay, John, town clerk 257 Mackenzie, John, of Delvine, ws 32, 33, 34, McCormick, Edward, adv. 295, 407 35, 36, 37, 38, 47, 77n, 79, 85, 86, 109, 114, McDouall, Andrew, adv., scj (Bankton) 62, 180, 181, 363, 396, 398, 399 63, 71, 78, 107, 118n, 141, 149, 155, 166, 229, Mackenzie, Kenneth, adv. 47 400 Mackenzie, Roderick, adv. 162 McDouall, Patrick, of Crichen, ws 39, 63 Mackenzie, Simon, adv. 48 McEuen, John, town clerk of Peebles 18, 383 Mackenzie, Sir George, of Rosehaugh, adv. McFarlane, James, copying clerk in 293, 320, 344, 356 Glasgow 408 Mackenzie, Sir James, of Royston, adv., scj McFarlane, John, writer in Edinburgh 64, (Royston) 397 65n Mackenzie, Stuart 293 McFarlane, Margaret, litigant 21, 125 Mackillop, William, procurator in McGoun, John, bailie of Drumiekill 320 Stirling 272, 273 McGregor, Alexander, procurator in Mackinlay, Finlay, thief 214 Glasgow 405 Mackintosh, Robert, adv., of Ashintully McIntosh, Campbell, writer in Inverness 31, 4, 62, 118, 391 68, 101, 134, 135, 232 MacLachlan, Archibald, litigant 101 McIntosh, Charles, ws 68 MacLean, Hector, agent in Edinburgh 395 McIntosh, John, adv. 294 MacLean, Lachlan, of Torloisk 47, 182 McKechnie, Hector, adv., sheriff 200 Macmillan, Anthony 97n, 391 McLaine, John, of Lochbuie 37, 134, 170 MacNab, James, fiscal in Haddington 335 McLameroch, Alexander, of Stranfasket 387 Macneil, Neil, merchant 41 McLeod, Alexander, of Muiravonside, adv. Macneil, Roger, of Taynish 41 75, 294 Macpherson, Alexander, writer in McLeod, Donald, of Geanies, adv., Glasgow 133 sheriff-depute of Ross-shire 168, 169, 232, Macpherson, Duncan, messenger 103 296, 356
McLeod, John, of Muiravonside, adv. 42, 44, Morris, David, adv. in Aberdeen 217 45, 48, 66 Moneypenny, Alexander, of Pitmillie 289 McLeod, Roderick, prisoner 339 Monro, Andrew, commissary of Stirling 234 McLeod, Roderick, ws 66 Monro, Archibald, commissary of McLeod, William Bannatyne, adv., scj 80 Stirling 235 McLaurin, John, adv., scj (Dreghorn) 46, 56, Monro, John, adv. 351 127, 345 Montrose, duke of, see Graham, James Mcpherson, John, writer in Ruthven of Morice, David, adv. in Aberdeen 257 Badenoch 382 Mowbray, William, litigant 194 McQueen, John, of Braxfield, sheriff Muir, George, writer in Edinburgh 241 substitute 348 Muir, Thomas, adv. 160 McQueen, Robert, of Braxfield, adv., scj Muirhead, George, writer in Edinburgh 13 (Braxfield) 24, 47, 59, 76, 153, 163, 222, Muirhead, James, agent in Edinburgh 171 239n Munro, George, fiscal in Tain 349 McVicar, Neil, writer in Edinburgh 176, 183 Murdoch, Alexander, writer in Ayr 132, 280 Meldrum, John, fiscal in Banff 322 Murray, Alexander, of Broughton 39, 74, Mercer, Adam 51, 63, 64, 114 138, 218 Mercer, John, np, writer, sheriff-clerk of Murray, Alexander, of Henderland, adv., Perth 385, 400 scj 218, 219 Mevius, David, jurist 168 Murray, Archibald, adv. 10, 68, 398 Miller, Benjamin 363 Murray, John, minor 373 Miller, Patrick, town clerk of Perth 27, 321n Murray, John, writer in Edinburgh 37, 38, Miller, James, adv. 78 134, 170, 394 Miller, Sir Thomas, of Glenlee, adv., scj Murray, Patrick, adv. 217 40, 312 Murray, William, barrister (Lord Miller, Thomas, bailie of Kinghorn 347 Mansfield) 60, 81 Miller, Thomas, clerk in Perth 300 Murray, William, fiscal in Dunbar 321 Miller, Walter, fiscal/town clerk in Murray, William, writer in Edinburgh 55, 82 Perth 288, 299, 300 Miller, William, adv. 60, 80, 198 Nairne, William, adv., scj (Dunsinnane) 46, Miller, William, ws 62, 126, 302 48, 290, 302 Milne, John, fiscal in Stonehaven 323 Nairn, Alexander, adv. 150 Milton, Lord, see Fletcher, Andrew Nairn, John, writer in Kirkcudbright 147 Mitchell, Andrew, writer in Glasgow 78, 113, Naysmith, James, ws 54, 78, 138, 298, 316 129, 137, 146, 147 Nazius, Ephraim 156 Mitchell, Joseph, vintner 263 Neilson, John, writer in Falkirk 383 Mitchelson, Samuel, sen., ws 84, 355, 389 Newton, Janet, litigant 194 Mitchelson, Samuel, jun., ws 45, 46, 72n, Nisbet, Sir John, of Dirleton, adv., hma 292n 320 Norrie, James, town clerk of Stirling 260 Mitchison, Rosalind, historian 215, 216 Moffat, William, writer in Edinburgh 271 Ogill, Alan, fiscal in Lanark 348 Moncreiffe, David 223 Ogilvie, David, fugitive 103 Montgomery, Sir James, of Stanhope, adv., Ogilvie, John, adv. 51 (adm. 1743), Chief Baron of Ogston, James, writer in Edinburgh 65 Exchequer 312, 313, 345n Oliver, Robert, litigant 57 Montgomery, Sir James, of Stanhope,adv. Orme, Alexander, ws 298 (adm. 1787) 199 Orr, James, writer in Paisley 406 Montgomery, Sir Walter, litigant 61 Orr, John, commissary of Glasgow 404
Paterson, Alexander, writer in Edinburgh 66 Richardson, George, writer in Edinburgh Paterson, James, adv. 125 63, 73 Paterson, James, writer in Stirling 321 Richardson, John, procurator in Paterson, Peter, writer in Glasgow 30 Haddington 335 Paton, William, ws 270 Richardson, William, procurator in Patrick, William, ws 147, 396 Edinburgh 97n, 351 Pattison, John, adv. 4 Riddell, James, apprentice 255 Pattison, John, fiscal in Renfrew 172 Robertson, Alexander, merchant 41 Paul, John, apprentice 256 Robertson, Alexander, of Faskally 8 Peat, George, writer in Fife 241 Robertson, Alexander, of Strowan, litigant 66 Peat, John, clerk to the ssc Society 207 Robertson, George, agent in Edinburgh Petrie, James, writer in Aberdeen 232, 52, 53, 78 233, 243 Robertson, John, commissary of Philp, James, admiralty judge 236 Peebles 128, 326 Pitcairn, Andrew, np 380 Robertson, John, of Straloch, defender 341 Pitcairn, Robert, fiscal in Dundee 301 Robertson, Patrick, fiscal in Dunkeld 326 Pitcairn, Robert, np 383 Robertson, Robert, fiscal in Dunkeld 326 Pollock, James, writer in Campbeltown 20 Robertson, Robert, merchant, treasurer in Porteous, John, merchant 17 Perth 299 Potts, Charles, procurator 18 Robertson, Thomas, writer in Cupar 305 Potts, James, sheriff clerk 377 Robertson, William, adv. 10 Preston, James, writer in Edinburgh 301 Rodger, George, writer in Selkirk 50, 129, Pringle, Alexander, of Whytbank, adv. 199, 322, 354 298 Rogers, James Stevenson, adv. 85 Pringle, George, of Torwoodlee, adv. 41 Rolland, Adam, adv. 48 Pringle, John, of Haining, adv., scj Rosate, Alberico de 194 (Haining) 123 Ross, George, solicitor/military agent in Pringle, John, writer in Edinburgh 17 London 128, 313 Pringle, Sir Walter, of Newhall, adv. (adm. Ross, David, of Ankerville, adv., scj 1688), scj 42, 137 (Ankerville), sheriff-depute 322 Pringle, Walter, of Graycrook, adv. Ross, David, fiscal in Ross and Cromarty, town (adm. 1664) 196 clerk of Tain 350, 380 Ross, John, fiscal in Ross and Cromarty 350 Quintilian, orator 105 Ross, Matthew, adv. 41, 48, 77 Ross, Robert, horse-hirer 213 Rae, Sir David, adv., scj (Eskgrove) 14, 46, Russell, James, fiscal in Edinburgh 330, 412 60, 80, 184 Russell, John, adv. 195 Rae, James, writer in Edinburgh 247 Russell, Patrick, ws 271 Rae, Robert, procurator in Ruthven, William, copyist 100 Kirkcudbright 276 Raeburn, Adam, litigant 307 Sadler, James, of St Kitts 16 Ramsay, John, of Ochtertyre 47, 165, 167, Savary, Jacques, author 127 400 Scales, John, procurator in Glasgow 368 Reddie, James, adv., town clerk of Schoir, Adam, ws 196 Glasgow 306 Scott, John, ws 50, 208 Reid, Andrew, writer in Jedburgh 371, 411 Scott, Walter, ws 121, 283 Richardson, Alexander, fiscal in Scott, Sir Walter, adv., pcs 76, 151, 322, 338n, Dunfermline 323, 333 339, 360, 400
Scott, William, adv. 117 Stair, see Sir James Dalrymple Scott, William, writer and fiscal in Steedman, James, wright 299 Edinburgh 23, 332, 338 Steuart, Andrew ws 16 Scrimgeour, Henry, ws 205 Stewart, Charles, np in Fort William 374 Scrymgeour, David, adv. 10 Stewart, Charles, ws 85 Scrymgeour-Wedderburn, Alexander 389 Stewart, James, writer in Dowally 101 Selkirk and Ruglen, earl of see John Stewart, John, sen, adv. 196 Douglas-Hamilton Stewart, John, writer and fiscal in Shairp, John, adv. 195 Dunkeld 326 Sharp, Matthew, of Hoddam, litigant 62 Stewart, John, ws 139 Shaw, Alexander, writer in Edinburgh 185 Stewart, William, writer in Lochmaben 177 Shaw, Charles, sheriff-clerk depute of Stirling James, adv. 196 Ayr 394 Storrie, William, writer in Edinburgh 244 Shaw, James, litigant 101 Strichen, see Fraser, Alexander Shaw, Samuel, writer 279 Sutherland, David, of Cambussavie, Shiels, John, writer in Glasgow 403 client 183 Shepherd, Arthur, sheriff-depute of Swinburne, Henry, lawyer and author 375 Kincardine 383 Swinton, Archibald ws 31, 68 Shortt, Francis, writer in Dumfries 282 Swinton, John, adv., scj (Swinton) 248, 302 Sim, John, writer in Aberdeen 406 Syme, John, ws 37, 140, 179 Sinclair, George, of Woodhall, adv., sheriff- depute 143n, 348 Tait, Alexander, adv. 82 Sinclair, John, writer in Edinburgh 305 Tait, James, depute town clerk of Sinclair, Robert, adv. 368 Edinburgh 305, 316 Sinclair, Sir Archibald, adv. 220 Tait, John, ws 6, 85, 114, 378n Sinclair, William, of Thurso 45, 73 Thomson, William Hamilton, adv. 159 Smith, Archibald, advocate’s clerk 69 Threshie, Robert, writer in Dumfries 95, 129 Smith, Archibald, writer in Glasgow 132, Tillary, Alexander, sheriff clerk depute 18 147, 404 Tod, George, writer in Edinburgh 383 Smith, George, procurator in Glasgow 329 Tosh, Richard, messenger 104 Smith, William, fiscal in Kelso 333 Turing James, merchant 16 Smollet, George, of Ingliston, adv. 96, Turnbull, George, ws 121 293, 314 Turner, George, sheriff clerk of Smollet, James, adv. 199 Aberdeen 121 Snodgrass, Hugh, procurator in Paisley 406 Ulpian, jurist 161, 187 Snodgrass, John, sheriff-clerk of Paisley 98, 275 Van Bourits, Jacques, Frisian advocate Somerville, William, writer in Glasgow 49 12n, 73, 105, 156, 159, 194 Soto, Domingo de, theologian 188, 189 Veatch, Alexander, writer in Spence, James, writer in Edinburgh 14, 57 Dunfermline 183 Spens, David, ws 61 Veitch, James, of Elliock, adv., scj 222 Spens, Richard, adv. 196 Voet, Johannes 17, 142 Spotswood, John, adv. 69 Spottiswood and Robertson, agents in Walker, David, adv., sheriff-depute of London 82, 128 Stirling 124, 272, 273 Spreul, Robert, writer in Glasgow 398 Walker, James, messenger 247 Sprott, William, solicitor in Edinburgh 236, Walker, James, fiscal in south Leith 329 269, 331, 343 Walker, Robert, adv. 222
Wallace, William, writer in Edinburgh 240 Wilson, James, writer in Glasgow 165, 184 Wardlaw, Henry, ws 195 Wilson, James, writer in Kilmarnock 280 Wardrop, John, writer in Glasgow 261, 321, 375 Wilson, James, procurator in Paisley 406 Warrender, Sir George, mp 39 Wilson, John, town clerk of Glasgow 27, 136 Watson, Charles, procurator in Alloa 19 Wilson, John, messenger in Strathaven 354 Watson, David, under-keeper of the Wilson, John sen., merchant in Glasgow 317 signet 250 Wilson, William, tenant 172 Watson, John, procurator of Admiralty 237 Wilson, William, of Howden, ws Watson, John, ws 56, 108, 121, 272 (adm. 1739) 16, 114, 140 Watson, Thomas 142, 145 Wilson, William, ws (adm. 1697) 246 Watt, William, barber 255 Wingate, Thomas, procurator in Stirling 336 Waugh, James, writer in Edinburgh 228n, Winram, Robert, adv. 196 243, 244, 245 Wissenbach, Johannes Jacobus 105 Waugh, William, town clerk of Selkirk Wishart, Patrick, ws 326 304, 379 Wotherspoon, Alexander, writer in Wedderburn, Alexander, adv., barrister 184 Glasgow 321, 375 Wedderburn, Peter, adv. 214n Wordie, John, commissary clerk 260 Weir, William, commissary depute of Wright, Thomas Guthrie, ws auditor 93 Glasgow 261, 321n Whyte, John, adv. 198 Yeaman, Catherine, servant 400 Wight, Alexander, adv. 82, 282, 356n, 384 Young, John, writer in Edinburgh 24, 239, Williamson, Joseph, adv., town clerk of 247, 292 Edinburgh 282, 316 Williamson, Peter 217 Zasius, Ulrich 375 Wilson, Andrew, writer in Bo’ness 211, 264
Aberdeen 8, 20, 49, 68n, 97, 121, 123, 135, 146, 1592 Concerning the office of lyoun king of 149, 195, 212, 213, 217, 254, 255, 257, 284, armes and his brether herauldis 103n, 315, 319, 355, 366, 405, 415 104n sheriff court 11, 385, 386 1593 Act for puneisement of tham that Society of Advocates 2, 21, 86, 158, 159n, trublis the parliament, etc. 65n 160, 167, 169, 212, 225, 227, 228, 230, 231, 1594 Anent souirties for officiaris of 232, 238, 242, 243, 247, 250, 251, 252, 253, armes 103 263, 266, 267, 285 1594 Act anent the bying of lands and “Golden Rules” 158, 166, 167 possessiounis dependant in pley treasurer 226, 253, 355 etc. 106 Aberdeenshire 2, 40, 55, 169, 178, 355, 356 1617 Act anent the reservatione of Abolition of Heritable Jurisdictions Act 1747, reversiones, seasingis and utheris see Acts of Parliament writis 362, 377 abuse of lawyers 45, 52, 66, 69, 167, 183, 1661 Act against clandestine and unlawfull 257, 391 marriages 172 abuse by lawyers 159, 164, 165, 166, 176, 204n, 1672 Act anent the regulation of the 245, 246, 249, 251, 258, 264, 272, 358, judicatories 58, 71, 78, 83, 87, 117, 374, 391 288n, 311 accountants 132, 301 1672 Act concerning arrestments used actions 61, 101, 141, 211, 291, 307 within burghs 288n Acts of Parliament 1681 Act anent Sasines and Reversiones of 1425 “Poor’s counsel Act” 191, 202, 223 Lands within Burgh 377 1430 “Oath of Calumny Act” 163, 192 1681 Act concerning the jurisdiction of the 1540 Off electioune of notaris 366n admiral court 352 1555 Anent punischement of fals 1685 Act anent messengers’ fees 104 witness 175 1686 Act for writeing sasines be way of 1579 Act anent the admissioun of the book 384n ordiner lordis etc. 160 1693 Act and ratification anent the 1579 Act anent the inserting of witnesses in communication of trade to burghs of obligationis and writtis of barony and regality 311 importance 361 1696 Act anent the Aliment of poor 1584 Ane act explanand the act of Prisoners 186 parliament maid of befoir anent 1696 Act against prophaneness 288 subscriving and seling of wryittis 1698 Act for settleing the communication etc 362 of trade 311 1584 That ministeris sall not be jugeis nor 1700 Act for preventing wrongous exerce ony uther ordinare office imprisonments and against undue etc. 361 delayes in tryals 320, 357 1587 Act for reformatioun of the extraor- 1706 Act for burying in woollen 340 diner nowmer and monyfauld abuses of 1734 An Act for the better regulating the officiaris of armes 103, 215 Election of Members to serve in the 1587 Act for remeid of the falsset and House of Commons etc. 380 ignorance of sindrie notaris 361, 366 1747 Abolition of Heritable Jurisdictions 1587 Act for the furtherance and furthset- (Scotland) Act 3n, 40, 110, 122, 280n, ting of the criminall justice ower all the 307, 313, 323, 337n, 348n realme 195 1785 Stamp Duty Act 88, 247, 370
1847 Crown Charters Act 363n 10 Aug. 1754, Act of Sederunt anent 1847 The Heritable Securities Act 363n Poindings and Arrestments 386n 1858 Titles to Land (Scotland) Act 363n 17 Jan. 1756, Act touching Instruments of 1865 Procurators Scotland Act 226, 230, Seisin, and the Keepers of the Registers 258, 354 of Seisins 384 1868 Titles to Land Consolidation 10 Mar. 1772, Act of Sederunt anent the (Scotland) Act 363n Trial and Admission of Agents 104, 1873 Law Agents (Scotland) Act 226, 246, 256 253n, 371, 401 11 Mar. 1772, Regulations for Messengers at 1896 Law Agents (Scotland) Act Arms 104n Amendment Act 1896 3n, 371n 6 Mar. 1783, Act prohibiting inferior judges, 1907 Sheriff Courts (Scotland) Act 201n, and their clerks, from acting as 209n, 323n procurators or Agents before their 1927 Sheriff Courts and Legal Officers respective Courts 26, 27, 28, 321 (Scotland) Act 323n, 335n 10 Aug. 1784, Act concerning the Poors 1949 Legal Aid and Solicitors (Scotland) Roll 198, 199, 202, 203, 204, 205, 206, Act 200n, 223n 207, 208, 210, 212 1980 Solicitors (Scotland) Act 371n 6 Feb. 1806, Act of Sederunt, relative to 1995 Requirements of Writing (Scotland) Accounts of Expences, and establishing Act 384n the Office of Auditor of Court 91 2007 Legal Profession and Legal Aid 16 June 1819, Act of Sederunt concerning the (Scotland) Act 371n Poor’s Roll 199, 200n, 202, 209 Acts of Sederunt 19 June 1821, Act of Sederunt regulating the 21 Nov. 1649, Act anent keeping up Collection of Fees payable to the Keepers Processes 178 of the Inner-House Rolls and Judges’ 7 June 1677, Act concerneing Clerks 201 Advocates 162n 4 July 1839, Act for Regulating the Form of 22 Feb. 1681, Act anent Sasines and Process in Sheriff Courts 209n Reversiones of Lands within 21 Dec. 1842, Act concerning the Poors Burgh 377 Roll 200, 202, 208n, 209, 210, 223n 20 Nov. 1686, Order concerning gratis admiralty courts 20, 24, 289, 320, 351 Warrands [sic] 203 admiralty, High Court of 74, 236, 237, 238, 2 Nov. 1695, Articles of Regulation 242, 314, 337, 351, 352 concerning the Session, dated the 29th advocates see also assessors; Faculty of of April 1695 58, 71, 78 Advocates; lawyer-client relations 9 Jun. 1710, Ordinance anent the Advocates chamber counsel 59 for the Poor 198n, 202, 203, 241, 245, 246 clerks 4, 89, 207n, 241, 299 1 Feb. 1715, Act for the greater Dispatch of consultations 15, 41, 42, 47, 48, 51, 53, 54, Business 164 55, 56, 57, 58, 59,60, 61, 62, 63, 72, 73, 76, 16 June 1742, Recommendation to the Dean 78, 79, 80, 85, 86, 90, 92, 93, 94, 97, 108, and Faculty of Advocates, and the 153, 160, 162, 171, 173, 181, 205, 218, 219, Keeper and Writers to the Signet, to give 265, 291, 293, 296, 298, 300 in the List of these they chuse yearly for drafting 2, 3, 5, 8, 32, 44n, 49, 50, 51, 53n, Advocates and Writers for the 55, 58, 59, 60, 63, 67, 73, 75, 78, 79, 80, Poor 197n 85, 86, 87, 88, 92, 95, 108, 111, 147, 148, 16 Mar. 1748, Act regulating the Fees of 162, 191, 204, 218, 245, 253, 255, 256, 267, Clerks, and other Officers in Sheriff and 273, 279, 334, 337, 360, 363, 369, 374, Stewart-Courts, etc. 98n 376, 377, 382, 384, 386 10 Aug. 1754, Act concerning the Admission employing counsel 8, 9, 10, 11, 39, 40, 41, of Agents and Solicitors 8, 89, 204 42, 44, 45, 46, 47, 48
Clanrannald 101 clerk of the bills 124 clearance (see lawyer-client relations) clerks of session 27, 83, 95, 106, 116, 144, 145, clerks of session, see Court of Session 181, 201, 203, 221, 222, 257, 294, 351, 394 clerk to the signet see writer to the signet clerk to the admission of notaries 369 clients (see also lawyer-client relations) extractors 6, 71, 83, 106, 249, 257, 396 coffeehouses 49, 50, 54, 264, 281, 382 fees 88, 270 College of Justice 1, 8, 82, 83, 87, 122, 171, 191, Inner House 91, 92n,94, 118, 203, 304, 397 192, 194, 257, 259, 369 judges 1, 3, 5, 8, 19, 25, 26, 45, 59, 57, 64, Privileges 1, 6, 10, 22, 162, 204, 267n 65, 83, 87, 88, 92, 95, 97, 98, 99, 104, 117, commissaries 102, 126, 169, 234, 235, 238, 243, 122, 131, 145, 158, 163, 164, 165, 178, 183, 265, 278, 288, 289, 329, 383, 403, 405 194, 196, 204, 213, 216, 217, 240, 241, 245, commissary court 61, 119, 120, 169, 182, 214, 256, 266, 275, 308, 309n, 313, 336, 352n, 226, 229, 232, 234, 244, 261, 266, 268, 364, 366, 370, 374, 379, 386, 398 275, 276, 282, 306, 319, 320, 326, 327, Jurisdiction 5, 7, 9, 31, 148, 159, 161, 176, 330, 345, 350, 351, 355, 357, 386 177, 186, 219, 232, 237, 240, 274, 275, 296, commissioners of justiciary 64, 66, 74, 334, 305, 311, 314, 316, 329, 345, 352 336 level of business 84, 89 circuit courts 45n, 46n, 162n, 167, 200, macers (usher) 159, 02 213, 215, 296, 336, 337, 338, 344 Outer House 60, 366, 397 Convention of Delegates 21, 226, 290, 291, procedure 51, 52, 55, 65, 92, 93, 120, 160, 310, 312, 313 165, 173, 175, 176, 178, 179, 202, 203, 204, Convention of Royal Burghs 77n, 81 208, 223, 257, 258, 281, 297, 345, 364, 395 Agents 96, 128, 293, 310, 312, 313, 314, 315, Teind court 2, 46 316, 317 Crailing 216 Assessors 312, 313, 315 criminal cases (see also rural crime) 1, 2, 45, clerks 311, 315 61, 65, 80, 86, 165, 167, 176, 200, 213, 214, confidentiality see ethics 215, 221, 296, 318, 319, 320, 328, 334, 336, Constantine, emperor 104 337, 345, 356, 357, 358 conveyancing 3, 5, 28, 83, 88, 95, 143, 147, crimen falsi see ethics 149, 253, 254, 318, 355n, 362, 363, 387 Cromarty 103, 120, 122, 195, 226, 232, 258, corresponding agents 32, 37, 47, 55, 67, 100, 350, 358, 383 101, 135, 146, 147, 148, 267, 286 crown agent 148, 200, 336, 337, 338, 339, 358 corruption 56, 158, 160, 214, 324, 378, 381, Cupar 305, 400 386, 396, 397 Curia 190 country practitioners 4, 5, 7, 9, 12, 79, 99, 100, 134, 170, 183, 240, 241, 245, 257, 258, dean of guild court 14, 27n, 112, 299, 305 271, 279, 280, 364, 376, 388, 390 debts 17, 32, 33, 34, 35, 36, 38, 84, 89, 95, 112, Court of Exchequer 15, 121, 223, 298, 313 134, 137, 138, 139, 140, 151, 152, 306, 382, 382 courts see admiral courts; bailie courts; court defamation 141, 344 of exchequer; Court of Session; inferior diligence 8, 12, 34, 96, 98, 100, 101, 104, 115, 136, courts; regality courts; sheriff court 151, 298, 302, 306, 372, 386, 387, 400 Court of Session (see also acts of sederunt; Dingwall 101, 168, 354n, 378 advocation; regulations; suspension) Discipline 103, 158, 159, 161, 168, 179, 225, 234, 1, 2, 13, 16, 17, 53,76, 79, 88, 126,129, 135, 145, 245, 246, 266, 267, 268, 269, 270, 309, 320 147, 180, 195, 211, 216, 217, 222, 234, 235, 238, double agency 7, 134, 135 242, 258, 292, 317, 318, 324, 327, 367, 373, Douglas, Heron & Co. 140 391, 395, 396, 397 Dowally 12, 101 agents 5, 6, 205, 206, 241, 245, 246, 256, Dresden 190 257, 259, 271, 281 Drumiekill 321 auditor of court 91, 93 drunkenness 55n, 167, 176, 265, 272
Duff House 70, 109 concussio 125, 163 Dumbarton 40, 325 confidentiality 48, 67, 174, 179, 180, 181 duels 66 crimen falsi 174 175 Dumfries 23n, 40, 95, 100, 135, 140, 152, 177, extortion 87n,102, 125, 168, 173, 337 179, 240, 253, 282, 292, 297, 301, 311, 323, prevarication 158, 171, 172, 173, 174, 379 346, 354, 370, 380, 387 price competition 84, 270 Dunbar 11, 33, 40, 307, 308, 310, 311, 321, 322, protraction 158, 159n, 177, 178, 179 331, 354, 364, 365, 366, 367, 378 suborning perjury 54, 159, 175, 176, 177 Society of Procurators 365 trickery 155 Dunblane 138, 272, 326, 356n ius commune ideas 154, 155, 156, 160, 174, Dundas & Wilson 127n 187, 188, 189, 190, 191 Dundee 100, 179, 227, 230, 301, 304, 318, 321, etiquette 342, 354, 355, 389 generally 158, 160, 161, 162, 269, 401 Society of Writers 227 pre-engagement 48n Dunfermline 164, 183, 184, 272, 278, 305, 309, professional reputation 65, 73, 102, 109, 310, 323, 324, 332, 333, 381, 383 119, 138, 140, 152, 153n, 157, 162, 170, 182, Dunkeld 211, 280, 326, 327, 378 184, 185, 222, 239, 240, 243, 244, 293, Duns 16, 18, 100, 217, 240, 277, 278, 306 295, 332, 339, 365, 379, 387, 399 Dutch influence 9 evidence see proof Dysart 376 examination see apprentices; procurators expenses 14, 17, 50, 59, 76, 77, 78, 79, 80, 83, Education 3, 23, 153, 225, 234, 250, 253, 254, 85, 89, 91, 92, 93, 94, 95, 98, 99, 107, 119, 285, 365, 367, 369, 400 135, 147, 164, 172, 185, 188, 190, 192, 193, Edinburgh (see also, Society of 200, 210, 213, 219, 224, 291, 302, 304, 308, Solicitors-at-law) 304, 318, 333, 334, 335, 345, 347, 382, 387 Clerks 316, 330 extractors see Court of Session town council 27, 76, 81, 128, 291, 318, 329, Eyemouth 277, 365 332, 355 Royal Infirmary 77, 224 Factors 5, 7, 13, 17, 32, 33, 34, 37, 38, 53, 65, Edinburgh agents 7, 8, 9, 37, 38, 40, 41, 47, 51, 66, 89, 95, 96, 101, 126, 131, 144, 149, 150, 52, 55, 79, 89, 94, 126, 134, 135, 147, 183, 348, 409 289, 291, 295, 299, 301, 304, 311, 318, 325, Faculty of Advocates 1, 2, 3, 4, 9, 11, 17, 22, 23, 394, 395, 398 25, 47, 81, 82, 84, 122, 150, 159, 160, 161, Edinburgh Gazette 229, 239 195, 196, 197, 198, 202, 204, 205, 206, 207, election disputes 56, 296, 298, 310, 314, 316, 208, 220, 221, 226, 229, 234, 237, 254, 317, 378, 379, 380, 381, 384 258, 265, 266, 275, 307, 351, 370 Elgin 195, 218, 219, 282, 315 1778 committee 207, 210 England 74, 76n, 78n, 97, 133n, 161, 176, 179n, 1783 committee 206 184, 223, 240, 295, 400 1827 committee 108 Eskdale 217 1873 committee 199 estate management 5, 7, 8, 33, 34, 35, 36, 90, anniversary meeting 197, 200, 264 118, 119, 129n, 144, 149, 150, 151 charity 220, 223 ethics 104, 153, 154, 158, 162, 167, 168, 181, 183, dean 52, 164, 197, 204, 206n, 265, 370 185, 191, 269, 270, 394, 398 examinators (examiners) 220 ambidexterity 157n, 158, 159n Faculty of Procurators see Glasgow buying pleas 106, 158, 159n Faculty of Writers in West Lothian see West calumny 117, 156, 158, 163, 164, 172, 173, 192n Lothian compulsion to act 190, 193, 215, 221, 222 Fair & Lookup 130, 131, 132, 409
Falkland 298, 352, 376, 378 Haddington 288, 293, 294, 307, 308, 311, 322, ‘favoured circle’ 276, 278, 279, 281, 405, 406 335, 337n, 340, 342, 347, 358, 389 favouritism 45, 47, 397 Hamilton 8, 147, 235, 261, 265, 306, 322, 345, 353 fee-books 77, 112 Hawick 149, 151 fees, see lawyer-client relations Highland chiefs 42, 44 fee tables 73, 87, 88, 97, 100, 101, 213, 266, Highlands and Islands 148, 341 270, 331, 385, 386 Holy Roman Empire 194, 308 Fife 113, 150, 195, 241, 289, 291, 292, 293, 305, Holyrood Abbey 187 347, 352, 362 Honoraria, see lawyer-client relations finance 35, 38, 317, 390 House of Lords 8, 9, 34n, 49, 58, 60, 81, 82, Florence 174 88, 178, 313, 317 forgery 26, 80, 86n, 112, 124, 125, 159, 184, 259, hypothec, see lawyer-client relations 373, 374 Fortrose 101, 168, 259, 352, 378, 379 immunity 141 Fort William 101, 135, 374 impartiality 26, 243, 275, 316, 350 France 9, 16, 17, 127, 194, 285, 373 infamy, see punishment Fraternity of Writers in Stirling see Stirling inferior courts (see bailie courts; justices of Freemasonry 35n, 281, 282, 283 the peace; regality courts) 1, 5, 10, 11, 13, Friesland 73 17, 18, 20, 22, 23, 25, 26 27, 31, 73, 97, 99, 110, 141, 149, 158, 160, 161, 168, 172, 179, 182, 211, Galashiels 41, 96, 151 214, 228, 238, 243, 244, 245, 246, 270, 277, Glasgow (see also University of Glasgow) 279, 293, 309, 317, 319, 320, 327, 331, 344, 8, 15, 19, 20, 27, 28, 29, 31, 41, 49, 66, 346, 347, 350, 356, 357, 360, 392, 397 78, 97, 100, 107, 111, 129, 132, 133, 136, inflation 36, 87, 88 137, 149, 157, 165, 184, 214, 296, 297, instructions, see lawyer-client relations 302, 317, 320, 322, 366, 374, 375, instruments of sasine 111, 362, 388 382, 387, 395, 397, 398, 401, 403, 404, inventories 29, 33, 38, 39, 64, 84, 85, 116, 405, 407 356, 387 commissary court 102, 126, 261, 306, 329 Inveraray 8, 47, 101, 138, 144, 148, 157, 161, 176, burgh court see bailie court 182, 212, 214, 334, 335, 342, 387 Faculty of Procurators 21, 102, 227, 228, Inverkeithing 85, 303, 314, 379 245, 247, 248, 251, 261, 263, 264, 265, Inverness 18, 31, 45, 46, 68, 101, 134, 135, 150, 266, 267, 269, 273–4, 275, 283, 284, 368 195, 213, 232, 293, 294, 306, 322, 332, 372, admission 231, 235, 236, 238, 252, 253, 378, 383, 389 255, 265, 266, 268 Inverurie 340, 352 charter 230, 231, 235 Investment 84, 101, 113, 121, 137, 138, 144, 273, size 227 283, 284 law firms 146, 147, 148 Irvine 293, 303, 330n, 353 procurator fiscal 321, 332, 342, 343, 345 ius commune 15n, 154, 160, 165, 174, 191 sheriff court 111, 274, 275, 296 ius gentium 242, 351 town council 40, 126, 287, 288, 296, 302, 368 Jacobites 60, 215, 222, 294, 340, 389 Gorbals 343, 362 Jedburgh 56, 130, 131, 133n, 201, 296, 371, 377, Gordon castle estate 149, 150 381, 384, 410, 411 Gowns 10, 69, 122, 169 Journal of Jurisprudence 161 Greenlaw 277 justices of the peace 184, 212, 214, 277, 282, Greenock 8, 111, 19, 148, 275, 276 296, 308, 314, 320, 325, 331, 333, 334, 340, Faculty of Procurators 19, 230n 356, 357, 358 Graham & Mitchell 29, 129, 133, 362 justiciary see commissioners of justiciary
Prestonpans 389 Ross and Cromarty 232, 258, 350 priests 155, 161 Rotterdam 392 printers 95, 114, 115, 148, 206 Roxburghshire 13, 131n, 216, 217, 377, 411 prisoners 61, 145, 186, 213, 222, 244, 308, 332, Royal Infirmary see Edinburgh 334, 339, 340 rural crime 340, 341, 342 procurators (see terminology) Ruthven, Badenoch 382 admission 18, 23 procurator for the Church, see Church of Saint Kitts 16 Scotland Selkirk 20, 89, 94, 129, 138, 255, 292, 296, 298, procurators fiscal 11, 18, 25n 27, 148, 171, 258, 304, 306, 321, 322, 330n, 339, 354, 379 278, 307, 317, 319 sentence money 221, 261, 330, 331, 332, 348, appointment 320, 321, 322, 323, 324, 326 357 authority 325, 327, 328 servitudes 50, 299 collusion 344 Session Papers 9, 77, 182, 217, 316, 406 concurrence 171, 328, 330, 331, 345n, 349, sheriff court 353, 415 clerks 18, 26, 27, 28, 95, 98, 120, 121, 123, expenses 333, 334, 335 142, 168, 212, 275, 276, 322, 323, 328, 371, history 319 376, 380 independence 347, 348, 349 conflict with burgh courts 40, 307, 308, oppression 346, 348, 357, 358 309 role 335, 336, 337, 338, 339, 343, 344, regulations 11n, 111, 212, 213, 256, 266, 268, 346, 347 274, 279, 386 salary 330, 331, 332, 333 substitutes 122, 123, 124, 274, 275, 397 status 350, 351, 352, 353, 354 Sinclair’s Practicks 193 tenure 326, 327, 329 smuggling 365 prostitution 175, 342, 343 societies of lawyers protests see notaries public see also Aberdeen; Ayr; Banffshire; protraction see ethics Dundee; Edinburgh; Convention of proof 56, 57, 63, 94, 176, 206, 213, 218, 350 Delegates; Cromarty; Faculty of Prussia 285 Advocates; Glasgow; Greenock; Leith; public interest 22, 24, 238, 241, 242, 273, 275, Paisley; S.S.C.; West Lothian; ws 285, 318, 343, 345, 365 Society punishment 159 committees 266, 267 infamy 160, 174, 175 Deans 260,261, 262, 263, 264, 265, 268, pillory 173 269, 274 striking off 159, 160 discipline 267, 268, 269 incorporation 226, 227, 229, 230, 231, 235, receipts for processes 116, 144, 145 238, 239, 241, 258, 275 Reichskammergericht 190 meetings 227, 235, 248, 262, 263, 264, regality courts 19, 52, 151, 217, 262, 288, 306, 266, 268, 281 324, 325, 340, 353, 355 office-bearers 260, 264, 265 register of sasines 120, 147, 377, 394, 400 protectionism 20, 271, 272, 273, 284, 275 regulations (see also acts of sederunt) resources 283, 284 Renfrewshire 19, 172, 276 strangers 231, 238, 245, 247, 252 res judicata 172, 396 Society of Solicitors-at-law 21, 27, 128, 210, retainers see lawyer-client relations 227, 228, 239, 265, 320 Roman law 3, 9, 17, 104, 125, 142, 143, 154, 160, soldiers 155, 267, 313 163, 218, 291, 398 solicitation of judges 396 Rome 154, 190, 220, 316, 373 S.S.C. Society 1, 88, 91, 195, 205, 207, 241
Steuart, J.C. & A. 129 window tax 33, 311, 366 Stirling witnesses (see also ethics, confidentiality; Fraternity of Writers 25, 32, 167, 211, 227, precognitions) 8, 12, 50, 57, 63, 69, 86, 95, 231, 234, 260, 261, 262, 263, 265, 266, 104, 111, 165, 175, 176, 200, 259, 273, 358, 361, 268, 269, 284, 285, 355 362, 382, 383, 384, 388, 392, 397, 398 Treasurer 284 writers 10, 39, 65, 67, 68, 128, 129, 134, 146, 272, Stonehaven 123, 323, 357n, 371 282, 363, 364, 366, 367, 368, 371, 390, 391 Strathaven 354 see also partnership; societies of writers strategy 8, 45, 55, 56, 59, 179, 395 activities 2, 3, 6, 17, 25, 37, 58, 61, 100, 101, striking off, see punishment 106, 111, 112, 120, 135, 180, 245, 324 surgeons 142, 224, 282, 338 income 95, 96, 108, 136, 137, 138, 303 suspension, bill of 278, 299, 347 investments 102, 113 number 363 Tain 101, 168, 295, 339, 349, 350, 356, 380 papers held by 116, 117 taxation of costs 71, 93, 94, 95, 98, 219 writers to the signet taverns 49, 54, 124, 230, 322, 382 accounts 95 ten-merk court 305 clerks 126, 127 terminology 1, 2 fees 87, 88 Tinwald House 109 functions 2, 3, 16, 87, 204, 205, 206, 246, Tolbooth 61, 141, 145, 183, 186, 231, 244, 255, 355n 261, 263, 264, 306, 325, 332, 342, 346, 379 income 82, 83, 84, 85, 86, 87, 125, 126, 134 town agents 13, 73, 86, 126, 224, 295, 297, Writers’ Hall 249 298, 299, 300, 301, 302, 314 writing chambers 28, 29, 38, 84, 100, 115, 127, town clerks 288, 299, 318, 332n, 361, 376, 377, 135, 246, 383, 407 378, 379, 380 ws Society 3, 6, 17, 82, 84, 241, 265, 285 Treasury 139, 333, 334 1804 committee report on fees 80, 87, 99, 161 University of Aberdeen 254 1812 committee on notaries 370 University of Edinburgh 240, 243, 253, 273n apprentices 249, 250, 251, 253, 266 University of Glasgow 62, 135, 296, 320 charity 139 University of Leiden 392 fees 83, 84, 87, 88 University of St Andrews 320 fiscals 270, 339, 343, 355, 369 unlicensed lawyers see societies of lawyers, internal discipline 128, 129, 246, 258, strangers 263n, 266, 268, 270, 271 unlawful combinations 229, 239, 259 poor litigants see lawyers for the poor, writers to the signet Voet, Johannes 15, 17, 142, 143, 375 size 17, 227, 228n treasurer 139, 249, 250 West Lothian, Faculty of Writers 211, 227, under-charging see price competition 248, 249, 261, 262, 263n, 264 widows 284