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Finlay, J. (2007)
Publisher: Edinburgh University Press
Languages: English
Types: Article
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    • 1 Modern studies of the legal profession also normally focus on those who enjoyed the rank of advocate, but some discussion can be found of procurators and attorneys. Relevant work in this field includes L Berlanstein, The Barristers of Toulouse in the Eighteenth Century 1740-1793 (1975); L Waelkens (ed), “L'Assistance dans la Résolution des Conflits” (1997) 64 Recueils de la Société Jean Bodin pour L'Histoire Comparative des Institutions; W Prest, Lawyers in Early Modern Europe and America (1981); W T M Frijhoff, La Société Néerlandaise et ses Gradués 1575-1814 (1981); R L Kagan, Lawyers and Litigants in Castile 1500-1700 (1981); C W Brooks, Pettyfoggers and Vipers of the Commonwealth (1986); R Robson, The Attorney in Eighteenth-century England (1959); W Bowsma, “Lawyers and early modern culture” (1973) 78 American Historical Review 303; G Strauss, Law, Resistance and the State: The Opposition to Roman Law in Reformation Germany (1986); J-L Halperin (ed), Les Structures du Barreau et du Notariat en Europe de l'Ancien Régime à nos jours (1996).
    • 2 H Donellus, Commentariorum de iure civili liber decimusoctavus (Frankfurt, 1626) 18.3: “Aduocati munus magis laudabile est, maioremque habet annexam dignitatem, quam procuratoris, quod est vile, adeo, vt etiam infames ad hoc admitantur: cum Aduocatus fieri infamis non possit.”
    • 3 A Tiraqueau, Commentarii de Nobilitate et Iure Primogeniorum (Lyon, 1617) c 29 n 14: “videtur officium aduocati minime vile esse & abiectum, imo vero laudabile, vitaeque hominum maxime necessarium ... cum officium notariorum & procuratorum sit vile”. Tiraqueau was a senator in the Parlement de Paris and his work was widely quoted.
    • 4 Berlanstein, The Barristers of Toulouse in the Eighteenth Century 8.
    • 5 In canon law a person found to be infamous (of evil reputation, infamia) came under certain legal disabilities reflecting his dishonest status: for instance he could not act as an advocate or procurator in court, or appear as a witness.
    • 30 The matter is discussed at length in another case, Information for James Wallace of Caversbank, defender against William M'Kechnie weaver in Paisley, and John Snodgrass writer there, Procurator-fiscal of the Sheriff-court of Renfrew, pursuer, ALSP, Arniston Collection (1766) vol 85 no 2.
    • 31 It was only in 1870 that it was recommended that a “country procurator” be permitted to retain charge of an action raised in an inferior court once it came to be conducted before the Supreme Court: Fourth Report of the Commission appointed to inquire into the Courts of Law in Scotland (C 175) (1870) 502. Under s 15 of the Law Agents (Scotland) Act 1873, the only law agents entitled to borrow processes in the Supreme Court in Edinburgh were those with a place of business in Edinburgh or Leith.
    • 32 See the short account in J B Barclay, The SSC Story 1784-1984 (1984) 5-6.
    • 33 In modern terms there is some parallel with the tax arrangements of international and supranational bodies, such as staff of the EU institutions in Brussels and elsewhere, and United Nations staff in New York.
    • 44 NAS, CS 1/14 fol 13r (8 March 1755). Lord Elchies died on 27 July 1754; the final Act of Sederunt was published in August.
    • 45 Thirteen were admitted prior to 1 Feb 1755, and a further 59 were admitted in the year following (all of them by 26 July 1755): NAS, CS 1/14 fol 49v.
    • 46 NAS, CS 1/13 fol 80v.
    • 47 NAS, CS 1/13 fol 140v. The custom actually dated back to a regulation dated 8 Nov 1609: History of the Society of Writers to Her Majesty's Signet (n 22) xlvii.
    • 48 The following advertisement, dated 1 July 1788, was placed in the newspapers: “On Monday the Writers to the Signet came to the resolution of using their Gowns in future, both in the Outer and Inner House; and the Court of Session have issued an order prohibiting any person to sit on the Benches of the Inner House, except Advocates and Writers to the Signet in their Gowns.”
    • 49 Acts of Sederunt (n 41) 575-576 (10 March 1772). The context may be significant since the measure in respect of agents followed a scandalous case of misconduct and dishonesty involving messengers-at-arms which led to reform in the court of the Lord Lyon and encouraged the Lords of Session to focus on agents in their own court. The case is found among the Session Papers: Information for John Campbell-Hooke of Bangeston Esq; Lord Lyon, and Thomas Brodie his depute, chargers against Charles Copland and John McColl, suspenders, ALSP, Arniston Collection (1765) vol 80 no 38.
    • 50 Memorial for the Society of Agents or Solicitors admitted and enrolled in terms of the Acts of Sederunt 1754 and 1772 Humbly Offered To the Consideration of the Right Honourable the Lords of Council & Session, 5 Aug 1788, NLS, FR339r/24(iii).
    • 51 Begg, Treatise on Law Agents (n 37) 12.
    • 52 The Society of Solicitors before the Court of Session v The Keeper, Commissioners, and Society of Clerks to the Signet 25 Feb 1800 FC. The Society of Clerks to the Signet is simply another name for the WS Society. The papers from this case are preserved in the Signet Library.
    • 53 History of the Society of Writers to Her Majesty's Signet (n 22) 234, 262-263.
    • 54 History of the Society of Writers to Her Majesty's Signet (n 22) 239.
    • 55 A number of rolls of advocates are preserved in the Faculty's records. Advocates failing to attend the roll-call were fined: see e.g. J M Pinkerton (ed), Minute Book of the Faculty of Advocates vol 1: 1661- 1712 (Stair Society vol 29, 1976) 149. The 1758 list is in the Faculty's records, NLS, FR339r/24.
    • 71 Memorial for George-James Duke of Hamilton, and his tutors v Mr Charles Brown Writer to the Signet, ALSP, Meadowbank Collection (1763) vol 30 no 17, 2. The writer thus acting was normally the agent for the purchaser of the brieve being served, but the macers were obviously free to select another provided he was also a WS. If the agent for the purchaser was not a WS, he therefore had to employ a WS to act as clerk.
    • 72 For example James Scougal, an advocate in Aberdeen and commissary of Aberdeen, was admitted as an advocate in the College of Justice on 14 June 1687 (NAS, CS 1/8 fol 125v) on the basis of his knowledge of municipal law; he was then elevated to the bench as Lord Whitehill on 15 Feb 1694, by which time he had become one of the commissaries of Edinburgh (CS 1/9 fol 123v). Scougal's father, John, however, was himself a Lord of Session under the title of Lord Whitekirk (elevated 17 Feb 1661). Gilbert Elliot, first Lord Minto, a WS who became an advocate in 1688 (having failed his first trial the preceding year), had become clerk to the Privy Council before his elevation to the bench in 1705: Pinkerton, Minute Book (n 55) 82, 85.
    • 73 NAS, CS 1/13 fol 133r. A horning was a declaration of outlawry, whereby a party's goods would be escheat to the Crown. The completion of such procedure was narrated and recorded in the appropriate register.
    • 74 History of the Society of Writers to Her Majesty's Signet (n 22) 5. Anderson was also son-in-law to John Ellis, advocate, whose father, also John, was a Dean of Faculty.
    • 75 Memorial for Archibald Blair, extracter in the Town-clerks Chamber of Edinburgh, ALSP, Drummore Collection (1739) vol 3.
    • 76 History of the Society of Writers to Her Majesty's Signet (n 22) 245.
    • 89 The petition of Robert Gordon, writer in Dumfries, ALSP, Miscellaneous Collection (1785) ser VII vol 6.
    • 90 A brief history is given in J A Henderson (ed), The History of the Society of Advocates in Aberdeen (1912).
    • 91 The petition of poor James Lundie against David Morice, advocate in Aberdeen, ALSP, Arniston Collection (1768) vol 84 no 26, proof, 13.
    • 92 Information for Mr Charles Hamilton-Gordon, advocate, against James Catanach, procurator in Aberdeen, ALSP, Elchies' Papers (1744) vol 15 no 7, 21. For discussion of this case see R L Emerson, Professors, Patronage and Politics: The Aberdeen Universities in the Eighteenth Century (1992) 65-69; J W Cairns, “Lawyers, law professors, and localities: the Universities of Aberdeen 1680-1750” (1995) 46 Northern Ireland Legal Quarterly 321.
    • 93 Alexander Laing writer in Aberdeen, petitioner, The Society of Advocates in Aberdeen, respondents, case for the respondents, Signet Library Session Papers (henceforth SLSP) (1782) 177:8 p 2. The fee charged to members of the WS Society for admission to practise in the courts of Aberdeen was less than that imposed upon those who were apprenticed in Aberdeen. One of the witnesses whose testimony is recorded in the proof in this process, John Innes, son of the commissary clerk, was only 14 when he began attending courts as his father's clerk: ibid, Proof for the President and Society of Procurators 25.
    • 98 Bankton, Inst 4.3.30.
    • 99 E.g. Information for Alexander Brown servitor to the Duke of Queensberrie against Anna Chalmers, ALSP, Forbes Collection vol 3, 2929. The papers are undated, but the action took place in 1704-1705, at which time Brown alleged that Chalmers made her procurator appear without a mandate in order to delay the action. Insistence on a written mandate reflects standard continental practice, e.g. at the Conseil Provincial de Namur and at the Grand Conseil de Malines: C Vael, “Avocats et procureur au Conseil Provincial de Namur” (1997) 64 Recueils de la Société Jean Bodin pour L'Histoire Comparative des Institutions 206; A Wiffels, “Procureurs et avocats au Grand Conseil de Malines” (1997) 64 Recueils de la Société Jean Bodin pour L'Histoire Comparative des Institutions 177
    • 100 Hardie v Allan (1709) Mor 12248; Inglis v Fuller (1712) Mor 12249.
    • 101 J Imbert, Enchiridion Iuris Galliae (Lyon, 1556) 268.
    • 102 NAS, SC54/23/6.
    • 136 See Finlay (n 20).
    • 137 Begg, Treatise on Law Agents (n 37) 18.
    • 138 As well as undergoing compulsion to act for defenders, advocates might be prompted by the court to offer their services to pursuers, as seems to have occurred in 1788 when the advocates Alexander Abercrombie and Charles Hope, and the writer Robert Sym (see n 86), offered to act for a Mr Fennel, late of the Theatre Royal: The Glasgow Mercury, no 554, 261, 12 Aug 1788.
    • 139 The petition of Mary Loutit, only child of the deceased Thomas Loutit of Tenston, late merchant in Kirkwall, ALSP, Meadowbank Collection (1761) vol 24 no 3.
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