chapter 10 Procurators Fiscal

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-f­iscal— 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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320 chapter 10 found personally instigating complaints in his court. The criminal role of the fiscal, it has been speculated, emerged once the sheriff no longer acted as a presiding officer who gave guidance to an assize, but took on the role of a judge proper. The fiscal’s role developed in order to prevent the sheriff being both judge and prosecutor in criminal cases.6 In the eighteenth century, fiscals worked in commissary, baron, bailie, admi- ralty and sheriff courts, as well as in the courts of the Lord Lyon and the Lord High Constable. Despite Samuel Mitchelson, junior, ws, asserting in 1774 that he had never “heard the Justice in any County had a fiscal”, fiscals did operate in the justice of the peace courts.7 Outside the inferior courts many corpora- tions, including the universities of Glasgow and St Andrews, had their own procurators fiscal to maintain discipline, as indeed did groups such as the ws Society and the Society of Procurators of Edinburgh (that is, the society of law- yers admitted to Edinburgh’s inferior courts, later known as the Society of Solicitors at Law).8 Even Scotland’s Enlightenment convivial societies, like the “Boar Club”, might provide in their constitutions for a fiscal to ensure observa- tion of their rules.9 In terms of official recognition, the fiscal was regarded by Sir George Mackenzie of Rosehaugh as the pursuer in place of the lord advocate in sheriff court criminal cases.10 In 1701, the office of fiscal was officially recognised by legislation in the context of public prosecution.11

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.